Introduction: The Rise in Divorce Rates.
Rasul began his paper on the economics of child custody with an observation and analysis of the American family. For him, the last thirty years had been witness to dramatic transformations involving the American family (Rasul, 2006, 1).
This dramatic change since the 1970s consists in the composition of American families. Where thirty years ago, more than half of the American families consisted of a father, mother, and child or children, today such composition only forms one in five families (Rasul, 2006, 1).
Such significant change is attributed to one factor alone, which is divorce. Rasul observes that the instances of divorce have risen dramatically over the years, such that it affects more than one million children every year (Rasul, 2006, 1). In the United Kingdom, another industrialized region, forty-one percent of marriages end up in divorce within fourteen years (Lamb, Sternberg, & Thompson, 1997, 394).
While divorce rates also increased in industrialized countries other than the United States, and the divorce rates in the United States already reached a plateau, the fact remains that the United States Bureau of Census estimated in 1992 that more than forty percent of first marriages in the country is bound to end in divorce. Moreover, the relative decline in divorce rates is accompanied by an equivalent effect, which is the number of people cohabiting without marriage and nonmarital child bearing. These other arrangements cause the decline in divorce, but end in the same situation of a broken family. (Emery, Sbarra & Grover, 2005, 22).
The increase in divorce rates can also be attributed to the certain developments since the 1970s, which include the growing tolerance of society for divorce. Moreover, society is no longer strictly insistent on the maintenance of stereotypical family arrangements (D’Errico & Elwork, 1991, 104).
Changes in Family Law.
As a consequence of these dramatic changes, changes in the field of family law also occur. These changes can be found both in substantive and procedural law (D’Errico & Elwork, 1991, 104-105).
Substantive law has changed due to observations of the effects of restrictive and punitive laws on divorce. Thus, many jurisdictions already steered away from the rule that one of the spouses must have committed some transgression before they can be granted divorce. Now, the prevalent rule in most jurisdictions is in accordance with the “no-fault” doctrine. This doctrine allows married couples to file for divorce on the simple ground of “irreconcilable differences (D’Errico & Elwork, 1991, 104).”
Another change in substantive law and policy can be found in the gender-neutral stance taken by courts in cases of divorce. The past decades illustrated a bias, manifested in the assumption that mothers have more inherent capability to take care of their children. Today, such an assumption is no longer strongly held. Rather, courts are now showing neutrality in gender and the determination of a family law case now hinges on the consideration of the “best interests of the child (D’Errico & Elwork, 1991, 104-105).”
Another change in substantial law and policy is manifested in the observation that there is a growing predilection over self-determined divorce and child custody arrangements. This trend of change is largely attributable to the belief that divorce is a private matter that must be left amongst them to be resolved. This belief is a break away from the previous prevailing thought about the state’s interest in protecting the sanctity of marriage through the regulation of its dissolution (D’Errico & Elwork, 1991, 104).
These changes in substantive law on divorce and family law necessarily caused changes in the procedural aspect of the law. Thus, the increased ease by which couples could seek divorce and the option of individualizing post divorce arrangements heavily increased the dockets of courts with divorce cases. This led the courts to encourage divorcing couples to find other alternative means of resolving their issues (D’Errico & Elwork, 1991, 105).
There are also other factors that make alternative means of resolving family disputes and divorce issues more appealing. The lack of necessity for proving fault in a divorce action removed the need to adjudicate family issues. Moreover, the removal of the presumption in favor of the mother’s capability to care for the child involved courts into making a determination about vague issues, such as love and care, which could be difficult to measure in a court setting. These factors all contributed to the growing popularity of other modes of dispute resolution, such as mediation (D’Errico & Elwork, 1991, 105).
One such alternative mode of dispute resolution recently applied in family law is mediation. Thus, divorce mediation, under which process a neutral third party intervenes to help the couple settle their differences through negotiation, receives the most attention lately (D’Errico & Elwork, 1991, 105) especially among parents who wish to get divorced (Emery, Sbarra & Grover, 2005, 22).
When applied to help couples arrive at self-determined arrangements on matters of divorce and child custody, mediation is believed to cause four benefits, namely, “(a) more satisfaction with the terms of agreements, (b) greater compliance with agreements, (c) less postdivorce conflict between ex-spouses, and (d) better postdivorce emotional adjustment (D’Errico & Elwork, 1991, 105).”
Indeed, mediation posed itself as a solution to the ever-increasing rates of divorce in the Untied States, as well as an alternative to ineffective and traditional methods of dispute settlement, such as litigation (Emery, Sbarra & Grover, 2005, 22). Mediation is becoming the alternative method of dispute resolution of choice since it provides professional help to divorces, which have a high probability of getting acrimonious. Thus, there are only few couples that could manage to suffer a divorce in amicable terms. In a survey of two California counties, it was found that 24 percent of divorces therein required professional intervention, while 25 percent involved intense conflict (Emery, Sbarra & Grover, 2005, 23).
Mediation is also popular among couples seeking divorce because unlike court action or litigation, it has the ability to facilitate administration of justice and reduce cost, specifically in terms of money and time. Moreover, adversary settlement procedures are now believed to cause problems involving post separation family relationships, arising from parental conflict and divorce. (Emery, Sbarra & Grover, 2005, 23).
Comparison of Divorce Mediation and Adversary Settlement.
It is not uncommon for mediation to get compared from other forms of dispute settlement, such as adversary settlement. In a study conducted by Emery, Sbarra and Grover, a comparison was made between mediation and adversary settlement through random assignment (2005, 25). They randomly approached families that were interested in contested custody hearing and offered them a mediation program as an eleventh hour settlement attempt (Emery, Sbarra & Grover, 2005, 25).
This study yielded positive results with respect to the time of settlement of issues. Thus, the authors found that cases assigned to mediation were settled in half the time that settlement using adversary settlement occurred. On the other hand, there are other studies that conclude that mediation is better over adversary settlement in terms of cost, because the former is less expensive than the latter. In addition, it was observed that there is a “trend for greater compliance with child support orders among nonresidential parents who mediated” (Emery, Sbarra & Grover, 2005, 27).
They also observed that there are more families coming from mediation that go back in order to update or change their existing arrangements. The authors view this in a positive light, saying that parenting plans should be viewed as living agreements that must be changed in accordance with corresponding changes in the stakeholders’ lives. Such changes are best made by going back to the mediation process (Emery, Sbarra & Grover, 2005, 27).
In addition, Emery, Sbarra and Grover noticed in the follow-up sessions to their study that most of their subjects who belonged to the mediation group were more open to the idea or suggestion of changing their original agreements. They are also the ones who actually adjusted their arrangements more often than those subjects who belonged to the adversary system (Emery, Sbarra & Grover, 2005, 28).
The authors noted that the willingness of the subjects to modify their original arrangements, coupled with the actual facts of modification, is a positive finding. Aside from the fact that the changes had been far from chaotic, they prove that parents who underwent mediation had become more flexible in accommodating changes that are important in the lives of their children and their own (Emery, Sbarra & Grover, 2005, 28).
The authors also looked into another factor to compare mediation with the adversary process. This factor is party satisfaction. They noted that each kind of method of dispute settlement has certain strengths. For example, the adversary system’s known strength is that it ensures that the rights of both parties are protected. On the other hand, mediation is known for being more understanding of the feelings of the parties involved (Emery, Sbarra & Grover, 2005, 28).
However, this main difference, which had looked so glaring before study, disappeared in view of the results that showed that mediation consistently got high rates of party satisfaction over the adversary system, even if the assessment was based on the criterion that is known for being the strength of such system. More importantly, the authors observed that such high rate of party satisfaction remains relatively unchanged among different time durations. Thus, a party may be satisfied with mediation six weeks after mediation, but surprisingly, parties remain satisfied even after a period of more than a year (Emery, Sbarra & Grover, 2005, 28).
Important Elements of Mediation.
Mediation remains on the top of the list of effective methods of dispute settlement, especially in divorce rates, because it boasts of certain elements that ensure the process’ success. One such element is its capability of enlisting the cooperation of parents in order to take the long view, and consider the best interests of their children in the future (Emery, Sbarra & Grover, 2005, 32).
Considering that divorce cases often involve high conflict, open hostility, and tension, it is difficult to call upon parents to cooperate with each other. However, mediation allows parents to take a look at the future of their relationship, maybe not as a couple, but as permanent parents (Emery, Sbarra & Grover, 2005, 32).
Mediation is also effective in educating divorcing parents and couples about emotions. These emotions involve not only those felt by the couple involved, but more importantly, those of their child or children. There are several techniques by which the goal of emotional education can be achieved, but one effective way is through the mediator’s reflection of a child’s possible emotional reactions to the crisis situation using his self as a medium. For example, the mediator could say how uncomfortable and scary an experience becomes when the couple starts fighting each other.
Thus, mediation allows parents to realize that their bickering actually affects the emotions of people around them, and thereby stop thinking about themselves. It is apparent therefore that mediation does not necessarily provide therapy for the emotional problems of the parties, but it allows them to understand the feelings and emotions involved in order to help them control such emotions in the best possible way and, in the process, achieve a good plan for the family (Emery, Sbarra & Grover, 2005, 33).
Finally, mediation is an effective process because it helps parties avoid treating each other as adversaries. A business-like approach such as the one commonly used in mediation allows the parties to approach issues in a distant and less emotional state. Moreover, not treating each other as adversaries avoids the road to strained relationships that only cause the wounds of the divorce to get worse (Emery, Sbarra & Grover, 2005, 34).
Effects of Divorce on Children
The trend in favor of divorce and single parenthood in industrialized countries has raised concerns about the effects of such family arrangements to children involved. Unfortunately for children, divorce often leads to negative immediate effects, such as serious emotional and psychological disturbance. Considering that psychological symptoms such as emotional disturbance, loneliness, depression, anger, helplessness, and many others are common among the parents or couples involved, it should be expected that such negative effects would be experienced more severely by the children trapped inside the crisis (Lamb, Sternberg, & Thompson, 1997, 394).
It is worth noting that the difficulty of children in dealing with their parents’ divorce is aggravated by the fact that the parents involved in the crisis are often too preoccupied with their personal emotions such that they fail to give much-needed support to their children. Worse, these parents often fall in the temptation to make too much demand that worsen the situation for their children (Lamb, Sternberg, & Thompson, 1997, 395).
Another problem common to children in divorce situations is the economic problem brought about by the need to maintain two separate residences, and the common situation of mothers who are more economically-challenged than the fathers. However, such situation is avoided or minimized in cases where the parents resolve their conflicts and work out a way of providing for the educational, emotional, and economic needs of their children (Lamb, Sternberg, & Thompson, 1997, 395-396).
Divorce and single parenting is increasingly becoming common in industrialized regions such as the United States and the United Kingdom. This trend is caused by several factors and, in turn, causes several issues, practices, and concerns in many different levels, such as the family, children, substantive and procedural law, and alternative dispute resolution mechanisms (Rasul, 2006, 1; D’Errico & Elwork, 1991, 104).
Divorce causes deleterious effects on the parties. However, the negative impact of divorce is more squarely felt by the affected children who, in their tender age, are forced into adjusting and coping with the emotional stress and burden necessitated by divorce proceedings (Lamb, Sternberg, & Thompson, 1997, 394).
Such hardships could be minimized by different factors, such as cooperation between parents in providing emotional, economic and educational support to their children. Parents also have the option of minimizing or totally avoiding antagonism and hostility in the divorce proceedings by choosing to undergo mediation rather than court litigation. Indeed, mediation provides many advantages and avoids the stress involved in court action (Emery, Sbarra & Grover, 2005, 22).
D’Errico, M. G. & Elwork, A. (1991). Are Self-Determined Divorce and Child Custody Agreements Really Better? Family and Conciliation Courts Review 29(2), 104- 113. Emery, R. E., Sbarra, D. & Grover, T. (2005). Divorce Mediation: Research and Reflections. Family Court Review 43(1), 22-37. Lamb, M. E., Sternberg, K. J., & Thompson, R. A. (1997). The Effects of Divorce and Custody Arrangements on Children’s Behavior, Development, and Adjustment. Family and Conciliation Courts Review 35(4), 393-404. Rasul, I. (2006). The Economics of Child Custody. Economica 73, 1-25.