Copyright 1991 by the American Psychological Association, Inc. 0022-006X/9f/$3.00
Journal of Consulting and Clinical Psychology 1991, Vol. 59, No. 3.410-418
Child Custody Mediation and Litigation: Further Evidence on the Differing Views of Mothers and Fathers Robert E. Emery, Sheila G. Matthews, and Melissa M. Wyer This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly.
University of Virginia An earlier study was replicated in which parents were randomly assigned to negotiate child custody disputes either in mediation or through the adversary system. In both the initial study (Emery & Wyer, 1987a) and the present replication, mediation greatly reduced the frequency of custody hearings, allowed settlements to be reached in half the time, and substantially improved the satisfaction reported by fathers. Considerably fewer differences were found for mothers who used the alternative forms of dispute resolution, however. Some differences found in both studies favored the women who litigated. No consistent differences in the psychological adjustment of mothers or fathers who mediated or litigated emerged across the two studies. Although careful consideration of findings argues against the conclusion that mediation is "good" for fathers and "bad" for mothers, findings point to the conflicting perspectives of men and women who contest child custody.
dispute resolution process (Irving, Benjamin, Bohm, & MacDonald, 1981; Margolin, 1973; Pearson & Thoennes, 1984; Watson & Morton, 1983). Mediation also was found to produce similar benefits in the one investigation where property and financial issues, as well as custody, were included in the divorce negotiations (Kelly, 1989). In contrast with these supportive findings, mediation has not been found to lead to improvement in the psychological adjustment of divorcing spouses (Emery & Wyer, 1987a; Kelly, Gigy, & Hausman, 1988). In our own research in which families were randomly assigned to settle custody disputes either in mediation or litigation, we also found that mediation greatly reduced the need for custody hearings and that agreements were reached more quickly in mediation (Emery & Wyer, 1987a). Unlike other researchers, however, we found potentially important differences between the reported satisfaction of mothers and fathers. In comparison with men who litigated custody, statistically significant and substantially meaningful increases in satisfaction were found among fathers who mediated. Multivariate indices indicated that fathers who mediated were more satisfied with the process of dispute resolution, its effects on them, and its effects on their relationship with their former spouse. In comparison with women who litigated, mothers who mediated were significantly more satisfied with the effect of their court experience on their children, but they were less satisfied with the settlements that they reached. Mothers who mediated also reported more depression than did women who litigated custody (Emery & Wyer, 1987a). This unexpected gender difference mirrors the position of some "father's rights" advocates who support mediation (Thompson, 1986) and "mother's rights" advocates who oppose it (Fineman, 1988). Because the "tender years presumption" historically has favored awarding custody to mothers, mediation and joint custody are seen as a loss for mothers and a gain for fathers. Such positions clearly dictate the exploration of gender differences, although the hope of mediation is to produce a "win-win" outcome that benefits both parents instead of a "win-lose" outcome that benefits only one.
Disputes about child custody following separation and divorce increasingly are being resolved in mediation, rather than through adversary procedures (Myers, Gallas, Hanson, & Keilitz, 1988). Several changes in family life and in family law are responsible for the growth of the custody mediation alternative. These changes include the high rate of divorce, large court caseloads, recognition of the detrimental effects of parental conflict on children, the vague standards guiding judicial custody determinations, and the increasing privatization of divorce in the United States (Emery, 1982a, 1988; Emery & Wyer, 1987b). As the practice of custody mediation has grown, it has become the topic of both praise and criticism. Many important debates about mediation are political in nature, focusing on such issues as mothers' and fathers' appropriate parental rights and responsibilities (Fineman, 1988; Thompson, 1986). Other debates concern professional issues such as the ethical obligations of mediators and the quality of their training (Emery & Wyer, 1987b). Such controversies reflect broad concerns about social justice, marital and parenting roles, and professional responsibility and are appropriately resolved in political and professional forums. Still, many debates about custody mediation focus on its effectiveness, a controversy that can be greatly enlightened by empirical investigation. Although methodological shortcomings necessitate cautious interpretation (see Emery & Wyer, 1987b), custody mediation generally has proven superior to custody litigation in the few quasi-experimental field studies that have been conducted to date. In comparison with adversary procedures, custody mediation has been found to reduce the need for court hearings, increase the speed of dispute resolution, improve compliance with agreements, and enhance parents' satisfaction with the
This research was supported by grants to Robert E. Emery from the William T. Grant Foundation. Correspondence concerning this article should be addressed to Robert E. Emery, Department of Psychology, University of Virginia, Gilmer Hall, Charlottesville, Virginia 22903-2477. 410
This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly.
CHILD CUSTODY MEDIATION AND LITIGATION Given the policy significance of the topic, the differences between our previous findings and those of other researchers, and our success in maintaining internal validity in our field research, we have replicated and extended our earlier investigation. Parents were randomly assigned to settle their custody disputes either in mediation or through the adversary system. Following the resolution of the custody dispute, court record data were obtained on the frequency of court hearings, the time needed to reach an agreement, and the content of the agreements that were reached. In addition, identical structured measures were administered to mothers and fathers from both groups shortly after they reached a settlement. Parents rated their satisfaction with the two dispute resolution procedures on five dimensions reflecting satisfaction with (a) the dispute resolution process, (b) the agreements that were reached, and the impact on (c) oneself, (d) the children, and (e) the coparental relationship. Mothers and fathers also completed structured measures evaluating their acceptance of the end of the marriage, conflicts over child rearing, and depression. These last three measures were included because love, anger, and sadness are prominent emotions in the grieving process experienced by many family members during divorce (Weiss, 1988) and because unresolved grief frequently appears to make dispute resolution in divorce more difficult (Emery, Shaw; & Jackson, 1987; Somary & Emery, in press). The present report summarizes findings on these measures from our replication study comparing 15 families who mediated disputed custody and 16 families who litigated the issue. We also present data combining the present sample with our original groups of 20 families who mediated and 20 families who litigated custody in the same court (Emery & Wyer, 1987a). Although the independent replication is a stringent test of the findings from the initial study, combining the two samples also has advantages. The combined sample increases the power of the statistical analyses, provides a sufficient sample size for examining correlations between measures within groups, and offers a convenient summary of findings for these 71 families who are being followed longitudinally.
Method Subjects Demographic data are presented for all subjects together, because no differences were found between the initial and replication samples or between the mediation and litigation groups. A total of 35 mediation families and 36 litigation families were recruited from those parties requesting a child custody or visitation hearing from a juvenile and domestic relations district court in central Virginia. The average age for mothers in the sample was 28 years (range: 18 to 45); fathers' average age was 31 (range: 20 to 47). Seventynine percent of the sample were White, and the remainder were Black. Reflecting the court's population of clients, the sample was largely of low socioeconomic status. Eighty-seven percent of the men and 88% of the women were working or had last worked in clerical or blue-collar occupations; 10% of the men and 20% of the women were unemployed at the time of the study. Average reported annual income for the men in the sample was $8,660 (range: 0 to $20,280); women's income averaged $7,675 (range: 0 to $21,630). Seventy-two percent of the men and 67% of the women had only a high school education or less. Most families were from Protestant religious backgrounds.
411
Procedure Families were randomly assigned to either mediate or litigate their custody dispute; however, ethical constraints prohibited ordering families to participate in either group. Rather, at the time of their court intake hearing, families were approached at random about either attempting to resolve their disputes in the court's new mediation program or participating in an evaluation of the court's services (litigation group). However, disputants were not approached about participating in either group if they were not the child's biological parents, there were allegationsof child abuse or neglect, or the wife had been a resident at a shelter for battered women. Mediation was believed to be inappropriate in these circumstances. Thirty-five of 49 (71 %) families approached about mediation agreed to participate, as did 36 of 43 (84%) litigation group families. Demographic and archival court record data were collected on all families who were approached about the study, so that those who agreed to participate could be compared with those who refused. Mothers who refused mediation reported significantly lower income than those who agreed to participate, f(38) = 3.17, p < .01, and fathers who refused mediation were more likely to work in clerical or Hue-collar jobs, x\4, A r = 49)= 10.42, p
Journal of Consulting and Clinical Psychology 1991, Vol. 59, No. 3.410-418
Child Custody Mediation and Litigation: Further Evidence on the Differing Views of Mothers and Fathers Robert E. Emery, Sheila G. Matthews, and Melissa M. Wyer This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly.
University of Virginia An earlier study was replicated in which parents were randomly assigned to negotiate child custody disputes either in mediation or through the adversary system. In both the initial study (Emery & Wyer, 1987a) and the present replication, mediation greatly reduced the frequency of custody hearings, allowed settlements to be reached in half the time, and substantially improved the satisfaction reported by fathers. Considerably fewer differences were found for mothers who used the alternative forms of dispute resolution, however. Some differences found in both studies favored the women who litigated. No consistent differences in the psychological adjustment of mothers or fathers who mediated or litigated emerged across the two studies. Although careful consideration of findings argues against the conclusion that mediation is "good" for fathers and "bad" for mothers, findings point to the conflicting perspectives of men and women who contest child custody.
dispute resolution process (Irving, Benjamin, Bohm, & MacDonald, 1981; Margolin, 1973; Pearson & Thoennes, 1984; Watson & Morton, 1983). Mediation also was found to produce similar benefits in the one investigation where property and financial issues, as well as custody, were included in the divorce negotiations (Kelly, 1989). In contrast with these supportive findings, mediation has not been found to lead to improvement in the psychological adjustment of divorcing spouses (Emery & Wyer, 1987a; Kelly, Gigy, & Hausman, 1988). In our own research in which families were randomly assigned to settle custody disputes either in mediation or litigation, we also found that mediation greatly reduced the need for custody hearings and that agreements were reached more quickly in mediation (Emery & Wyer, 1987a). Unlike other researchers, however, we found potentially important differences between the reported satisfaction of mothers and fathers. In comparison with men who litigated custody, statistically significant and substantially meaningful increases in satisfaction were found among fathers who mediated. Multivariate indices indicated that fathers who mediated were more satisfied with the process of dispute resolution, its effects on them, and its effects on their relationship with their former spouse. In comparison with women who litigated, mothers who mediated were significantly more satisfied with the effect of their court experience on their children, but they were less satisfied with the settlements that they reached. Mothers who mediated also reported more depression than did women who litigated custody (Emery & Wyer, 1987a). This unexpected gender difference mirrors the position of some "father's rights" advocates who support mediation (Thompson, 1986) and "mother's rights" advocates who oppose it (Fineman, 1988). Because the "tender years presumption" historically has favored awarding custody to mothers, mediation and joint custody are seen as a loss for mothers and a gain for fathers. Such positions clearly dictate the exploration of gender differences, although the hope of mediation is to produce a "win-win" outcome that benefits both parents instead of a "win-lose" outcome that benefits only one.
Disputes about child custody following separation and divorce increasingly are being resolved in mediation, rather than through adversary procedures (Myers, Gallas, Hanson, & Keilitz, 1988). Several changes in family life and in family law are responsible for the growth of the custody mediation alternative. These changes include the high rate of divorce, large court caseloads, recognition of the detrimental effects of parental conflict on children, the vague standards guiding judicial custody determinations, and the increasing privatization of divorce in the United States (Emery, 1982a, 1988; Emery & Wyer, 1987b). As the practice of custody mediation has grown, it has become the topic of both praise and criticism. Many important debates about mediation are political in nature, focusing on such issues as mothers' and fathers' appropriate parental rights and responsibilities (Fineman, 1988; Thompson, 1986). Other debates concern professional issues such as the ethical obligations of mediators and the quality of their training (Emery & Wyer, 1987b). Such controversies reflect broad concerns about social justice, marital and parenting roles, and professional responsibility and are appropriately resolved in political and professional forums. Still, many debates about custody mediation focus on its effectiveness, a controversy that can be greatly enlightened by empirical investigation. Although methodological shortcomings necessitate cautious interpretation (see Emery & Wyer, 1987b), custody mediation generally has proven superior to custody litigation in the few quasi-experimental field studies that have been conducted to date. In comparison with adversary procedures, custody mediation has been found to reduce the need for court hearings, increase the speed of dispute resolution, improve compliance with agreements, and enhance parents' satisfaction with the
This research was supported by grants to Robert E. Emery from the William T. Grant Foundation. Correspondence concerning this article should be addressed to Robert E. Emery, Department of Psychology, University of Virginia, Gilmer Hall, Charlottesville, Virginia 22903-2477. 410
This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly.
CHILD CUSTODY MEDIATION AND LITIGATION Given the policy significance of the topic, the differences between our previous findings and those of other researchers, and our success in maintaining internal validity in our field research, we have replicated and extended our earlier investigation. Parents were randomly assigned to settle their custody disputes either in mediation or through the adversary system. Following the resolution of the custody dispute, court record data were obtained on the frequency of court hearings, the time needed to reach an agreement, and the content of the agreements that were reached. In addition, identical structured measures were administered to mothers and fathers from both groups shortly after they reached a settlement. Parents rated their satisfaction with the two dispute resolution procedures on five dimensions reflecting satisfaction with (a) the dispute resolution process, (b) the agreements that were reached, and the impact on (c) oneself, (d) the children, and (e) the coparental relationship. Mothers and fathers also completed structured measures evaluating their acceptance of the end of the marriage, conflicts over child rearing, and depression. These last three measures were included because love, anger, and sadness are prominent emotions in the grieving process experienced by many family members during divorce (Weiss, 1988) and because unresolved grief frequently appears to make dispute resolution in divorce more difficult (Emery, Shaw; & Jackson, 1987; Somary & Emery, in press). The present report summarizes findings on these measures from our replication study comparing 15 families who mediated disputed custody and 16 families who litigated the issue. We also present data combining the present sample with our original groups of 20 families who mediated and 20 families who litigated custody in the same court (Emery & Wyer, 1987a). Although the independent replication is a stringent test of the findings from the initial study, combining the two samples also has advantages. The combined sample increases the power of the statistical analyses, provides a sufficient sample size for examining correlations between measures within groups, and offers a convenient summary of findings for these 71 families who are being followed longitudinally.
Method Subjects Demographic data are presented for all subjects together, because no differences were found between the initial and replication samples or between the mediation and litigation groups. A total of 35 mediation families and 36 litigation families were recruited from those parties requesting a child custody or visitation hearing from a juvenile and domestic relations district court in central Virginia. The average age for mothers in the sample was 28 years (range: 18 to 45); fathers' average age was 31 (range: 20 to 47). Seventynine percent of the sample were White, and the remainder were Black. Reflecting the court's population of clients, the sample was largely of low socioeconomic status. Eighty-seven percent of the men and 88% of the women were working or had last worked in clerical or blue-collar occupations; 10% of the men and 20% of the women were unemployed at the time of the study. Average reported annual income for the men in the sample was $8,660 (range: 0 to $20,280); women's income averaged $7,675 (range: 0 to $21,630). Seventy-two percent of the men and 67% of the women had only a high school education or less. Most families were from Protestant religious backgrounds.
411
Procedure Families were randomly assigned to either mediate or litigate their custody dispute; however, ethical constraints prohibited ordering families to participate in either group. Rather, at the time of their court intake hearing, families were approached at random about either attempting to resolve their disputes in the court's new mediation program or participating in an evaluation of the court's services (litigation group). However, disputants were not approached about participating in either group if they were not the child's biological parents, there were allegationsof child abuse or neglect, or the wife had been a resident at a shelter for battered women. Mediation was believed to be inappropriate in these circumstances. Thirty-five of 49 (71 %) families approached about mediation agreed to participate, as did 36 of 43 (84%) litigation group families. Demographic and archival court record data were collected on all families who were approached about the study, so that those who agreed to participate could be compared with those who refused. Mothers who refused mediation reported significantly lower income than those who agreed to participate, f(38) = 3.17, p < .01, and fathers who refused mediation were more likely to work in clerical or Hue-collar jobs, x\4, A r = 49)= 10.42, p
