A REPONSE TO SALEM: COMMON SENSE

Steve Baron

. . . I know of no safe depository of the ultimate power of the society but the people themselves.

. . . the less we use our power, the greater it will be.—Thomas Jefferson

VALID CONCERNS, INVALID CONCLUSIONS

The concerns expressed regarding diminishing resources and insufficient time to prop-erly and safely conduct mediation are valid. A re-reading of Salem’s article, however,actually provides a solid case for requiring the use of mediation in the vast majority of casesfor many reasons not the least of which is that between 50 percent and 80 percent of thecases sent to mediation resolve. Furthermore, he clearly implies that additional resourcesand sufficient time would strengthen the argument for continuing the use of mandatorymediation. The assumption that the problem of insufficient resources and time to offerproperly conducted mediation is irresolvable is not valid. Suggestions are made at the endof this article for how many jurisdictions in the country can mobilize community andeducational institution based resources at low or no cost to provide confidential mediationalong with more time in mediation. While these measures do require initiative, will, andextra work by court staff especially in early stages of program implementation, the advan-tages that accrue to families and the court system as a result can be enormous.

“IDEOLOGICAL FERVOR” OR COMMON SENSE

If you want to make peace, you don’t talk to your friends. You talk to your enemies.—Moshe Dayan

Supporting the use of mandatory mediation for the vast majority of litigating clients hasnothing to do with “ideological fervor,” as Salem suggests. It is being suggested because,as Salem points out, it works for between 50 percent and 80 percent of clients who valuethe service highly. It is being supported because eliminating the requirement that mediationbe conducted at the earliest appropriate time (see below) in the history of a case, or leavingthat option up to the vast majority of parents, will result in many cases that would otherwiseconstructively resolve in mediation being delegated to the court system for resolution. Thiswill result in a concurrent surrendering of parental custody and visitation decision makingauthority to others more comfortable with making those decisions under the parents’ initialerroneous belief that they are incapable of resolving their custody or visitation conflict evenwith the help of a mediator.fcre_1299 195..200

Correspondence: Sbaronfcsofa@aol.com

FAMILY COURT REVIEW, Vol. 48 No. 1, January 2010 195–200© 2010 Association of Family and Conciliation Courts

At the beginning of every three hour Mediation Orientation class I facilitated at FamilyCourt Services in Santa Clara County for over a decade, I asked, “How many of you thinkyou are going to reach a full agreement in Mediation on custody and visitation?” Inevitablyonly a very small minority of hands would go up and the reason for that made perfect sense.Their relationships, trust, and ability to communicate in a healthy manner had severelydeteriorated. Their emotional upset had escalated in the context of their painful histories,and they had no hope or reason to believe that they could reach an agreement havingnever experienced mediation. However, since they were required, with a few exceptions,to participate in mediation, even if for some it was after an initial emergency investigationresulting in a temporary order, almost two-thirds of those parents, after completing Orien-tation and Mediation, which often included several sessions, would reach full agreements.Furthermore, feedback from them, especially from those reaching agreement, was prima-rily positive and appreciative, experiences that were replicated and documented across thestate in the research conducted by the California Administrative Office of the Courts(Piazza, Will, & Ferrick, 2004).

MORE SERIOUS CASES NOW OR DID WE NOT KNOWENOUGH BACK THEN?

. . . there is nothing new under the sun—Ecclesiastes 1:9

The position that custody and visitation cases now present with more serious problemsthan in previous decades is unsupported by any valid or reliable data. While researchconducted by the California Administrative Office of the Courts since 1991 does validatethe existence of serious problems in many cases, there is no verifiable reason to believe that,for the most part, those problems were not always present, if unrecognized, since the earlydays of mediation. While that research first and foremost validates strong client satisfactionwith mediation for a significant majority of clients, and while it also identifies the impor-tance of early screening of cases to identify the presence of serious problems whether or notcases are mediated, and also suggests the need for some type of triage action, there is alsothe suggestion that even difficult cases would benefit from increased time spent in properlyconducted mediation (Hirst, Depner, Will, Ferrick, & Heagy, 2003).

CAN WE WALK AND CHEW GUM AT THE SAME TIME?

Let’s play two!—Ernie Banks

I propose that the legitimate need of domestic relations courts to address seriousproblems such as substance abuse, child maltreatment, and domestic violence is notincompatible with requiring that the vast majority of these parents participate in properlyconducted mediation at some point during the court process, even if it be after an initialemergency investigation focused on addressing safety issues and resulting in a temporaryorder for custody and visitation (Baron, 2003). Parents experiencing serious problems,except in extraordinary circumstances, should not be presumed to be incompetent regard-

196 FAMILY COURT REVIEW

ing their abilities to fairly participate in properly and safely conducted mediation andshould be granted the right and opportunity to design a plan that they consider to be safeand in the best interest of their children before the court system presumes, in the absenceof evidence to the contrary, that it can do a better job in ordering a long term plan forcustody and visitation. It is noteworthy that the court system requires such participation inmany jurisdictions across the country in child protection cases in the juvenile dependencysystem where those problems are typically far more serious and severe than they are indomestic relations courts.

FIRST, DO NO HARM

All men having power ought to be mistrusted.—James Madison

Eliminating the requirement for mediation, the remaining mechanisms for conflictresolution inherently begin to shift increasing amounts of power and authority to otherADR and decision making professionals and bench officers. Except in emergency situa-tions, these more intrusive services should be reserved for those families who have dem-onstrated they are unable to reach a safe and best interest oriented agreement in mediation.This should occur not only for the purpose of attempting to support parents as the decisionmakers regarding custody and visitation matters, but also in order to minimize theirexposure to the potentially harmful iatrogenic effects of the system itself, for example,depletion of emotional, time, and financial resources; increased pressure to accept settle-ments they do not believe are in their children’s best interest; increased stress, adversari-ality, and surrendering of parental custody and visitation decision making authority to thecourt system; poor quality or short cut investigations resulting in misinformed or underinformed recommendations with a greater probability of leading to poor outcomes. It isfurther noted that some of these potentially harmful iatrogenic effects are the result of thesame factors Salem cites in arguing against the appropriateness of mandatory mediation—the lack of sufficient time and resources. Contrary to Salem’s suggestion that mediation cando harm to families, orientation and properly and safely conducted confidential mediationare the two least intrusive court offered services and those least likely to do harm.

“WE CAN’T DO IT, AND HERE’S ALL THE REASONS WHY.”VS.

“LET’S TRY”

If we did the things we are capable of, we would astound ourselves.—Thomas Alva Edison

I propose that government administrators, managers, and professionals who supportthem, having been one myself, sometimes have a tendency when presented with a difficultproblem, like maintaining a proven service in a time of diminished resources, to focus onall the reasons they cannot and/or should not maintain that service instead of on what theyneed to do to continue and strengthen the service, as difficult as that might be. I propose thatthe approach supported by Salem’s article, while reflecting legitimate concerns, is more

Baron/A REPONSE TO SALEM 197

genuinely aimed at meeting the needs of court system managers and staff than of thefamilies and children it serves. It is a very frustrating and very difficult task to help highlyconflicted parents work through those conflicts to reach a healthy agreement, and it is justeasier for someone in the system to decide for them regardless of the integrity of theprocess or quality of the outcome. There is an alternative way to approach the problem.Instead of looking at it from the perspective of all the reasons why properly conductedmandatory mediation for the vast majority of cases cannot be offered, take a more con-structive approach which identifies the barriers to offering such mediation, consider whatneeds to be done to overcome those barriers, and take appropriate action. Not everyjurisdiction will be able to succeed in doing so, but every jurisdiction is capable of trying.

SO WHAT CAN WE DO?

For it isn’t enough to talk about peace. One must believe it. And it isn’t enough to believe init. One must work at it.

—Eleanor Roosevelt

So what can a given court system do if it determines there are not enough resources ortime to provide both mandatory mediation and other ADR mechanisms and investigations?Any Family Court system located within commuting distance of a university offeringgraduate studies in psychology, sociology, social work, counseling, or related fields, or alaw school, is sitting near a potential gold mine of mediation interns who need opportu-nities for fieldwork placements and/or hours in experience towards earning a professionallicense or certification or class credit in conflict resolution. Family Court Services in SantaClara County has worked with local universities for the past thirteen years in obtaininggraduate student interns to provide confidential mediation with each selected intern com-mitting to providing the equivalent of two full days of mediation per week for a minimumperiod of one full year. Some of these interns have been bilingual providing anotherenormous benefit to the court and the families it serves. Family Court services providesapproximately forty seven hours of initial training, including specialized domestic violencetraining, with ongoing weekly supervision and ongoing supplementary training normallyprovided for regular staff. This supplementary assistance comes at the cost limited to thatof a supervisor’s time for initial program design, Family Court Services/university col-laboration, and program implementation, a Family Court Services supervisor providing theinitial training, weekly group supervision, review of each agreement or referral onto thenext level of service, and available individual consultation, and then yearly new internrecruitment. There are no monies paid to the interns or universities.

This intern program, when staffed at the level of five interns when such is the need, hasresulted in the equivalent of up two full time staff positions performing confidentialmediation full time on a yearly basis at the rate of two new mediation appointments and upto two return appointments each work day.

During a period of time when there was no office space available in the courthouse,arrangements were made with both universities to provide mediation at their counselingoffices for parents with no histories of domestic violence or other safety oriented issues,and who each volunteered to attend mediation at those sites in evening hours which were,in fact, more convenient for them. When office space became available in the court house,the interns were brought back in because it was logistically much easier for Family Court

198 FAMILY COURT REVIEW

Services. Interns located in the court were assigned the same types of mediation cases asregular staff, including cases with histories of domestic violence. It is important to note thatthe rates of agreements achieved by interns averaged 10 percent to 15 percent higher thanfor regular staff, and each agreement was reviewed and approved by a supervisor beforesubmission. The higher settlement rate was attributed to one factor—time. Interns wereable, and encouraged, to provide more sessions, up to four or five if necessary, than regularstaff who were typically limited to two sessions due to other investigatory responsibilities.It is important to emphasize that interns provided confidential as opposed to “recommend-ing” mediation, had no decision making authority with regard to custody or visitation anddid not make recommendations to the court.

This mediator program is considered to be a beneficial and winning situation for theclients, the court, the university, the interns, and the community. The clients gain fasteraccess to mediation (at the time of program implementation the wait for mediation waseleven weeks, and since then has continually remained between 2 and 4 weeks, a periodconsidered to be optimal). They receive more time in mediation are more likely to reach anagreement than they otherwise would, and are less likely to penetrate further into the courtsystem. The court and Family Court Services benefit accordingly. The interns gain conflictresolution skill, experience, and confidence. The universities benefit because they are ableto make this kind of unique experience available to their students thereby enhancing thequality of their educational experience. The community benefits for all of these reasons andbecause community awareness and professional knowledge about child custody and visi-tation and related issues expands and becomes more sophisticated. Finally, these types ofcollaborations sometimes serve as a foundation for further collaborative projects over time.

So what does a family court do if it does not have access to local university interns?There are very few, if any, counties in this country which do not have among their residentsa number of retired social workers, psychologists, therapists, probation officers, attorneys,or other professionals with backgrounds in the helping professions, who have invaluableexperience and the appropriate temperament for mediation, and who are looking for a wayto contribute to their communities. The court and Family Court Services has to do com-munity outreach to these resources to inform them of this need, and develop an application,selection, and training process in exchange for their help in providing confidential media-tion to families at no cost.

And so, in conclusion, as the man asked:

. . . why not?—Robert F. Kennedy

I would respectfully suggest that if we are a little too willing and quick to answer thatquestion with all the reasons justifying why we cannot offer properly conducted mediationfor the vast majority of clients, maybe, just maybe, we aren’t trying hard enough.

REFERENCES

Baron, S. (2003). The scope of family court intervention. Journal of the Center for Families, Children & theCourts, 4, 115–129. Retrieved from http://www.courtinfo.ca.gov/programs/cfcc/pdffiles/115Baron.pdf.

Hirst, A. M., Depner, C., Will, D., Ferrick, G., & Heagy, L. (2003). Research update: Difficult cases in Californiacourt-based child custody mediation. Center for Families, Children & the Courts, 1–13. Retrieved fromhttp://www.courtinfo.ca.gov/programs/cfcc/pdffiles/resupDiffCases99.pdf.

Baron/A REPONSE TO SALEM 199

Piazza, D., Will, D., & Ferrick, G. (2004). Research update: Client feedback in California court-based childcustody mediation. Center for Families, Children & the Courts, 1–38. Retrieved from http://www.courtinfo.ca.gov/programs/cfcc/pdffiles/Clientfdbk.pdf.

Steve Baron is the retired Director of Family Court Services for the Superior Court, State of California,Santa Clara County, where he worked for 22 years, is a member of the adjunct faculty for Santa ClaraUniversity where he has taught in the graduate Counseling Psychology and Education division on subjectsof child abuse and neglect, domestic violence, and substance abuse since 1987, and is an occasionaltrainer for California’s Center for Families, Children & the Courts. He has co-authored a number ofjournal articles on the subjects of family and dependency court mediation, and court/community collabo-rative projects.

200 FAMILY COURT REVIEW