Over the past two decades, with divorce rates reaching unprecedented highs in our nation, courts have increasingly encouraged the mediation of divorce settlements and child custody cases in lieu of litigation. Seen as a viable method of reducing congested court dockets, and hailed for its speed and cost efficiency, mediation has been celebrated for its merits as an effective alternative route to dispute resolution. Mediation is not only being utilized with ever-increasing frequency for divorce and custody disputes, but for all kinds of disputes, making it one of the most popular and prominent components of all the ADR programs.
The process aims at using a neutral third party in a non-threatening environment to identify relevant issues and help disputing parties negotiate solutions that best suit their family circumstances. Since divorce cases are often bitterly fought and filled with emotion, making parents incapable of sound decision-making especially when it comes to decisions about their children, the use of an impartial arbiter is integral to ensuring that the best interests of the children involved are upheld. The courts, as parens patriae, have long played the role of protectors of these interests. However, the lengthy and adversarial nature of litigation is not in the best interest of children involved in custody disputes. And while many may advocate mediation as the best recourse because it eliminates the length and adversity of the process, I believe that the laxness of current custody mediation guidelines fails to uphold the best interest of the child as well. Mediation may still be a better alternative to litigation of child custody cases, but if we are to make it the best alternative to litigation, custody mediation must undergo several significant changes.