Barbara Landau Ph.D., LL.B., LL.M.
February 19, 1997

It is well recognized that there are good reasons for treating family matters differently from other civil cases. Most importantly, where there are children, the parents must continue to cooperate for years after their separation. The more adversarial the divorce, the more devastating the result for the children, as well as for extended family members and friends. The legal process exacerbates the hurt feelings, lack of trust and communication problems between the parties. If we compare the death of a marriage to the death of a person, we see how our society offers healing rituals for the latter and war metaphors for the former.

We now have an opportunity to rethink our metaphors and help families to achieve a more constructive dissolution to their relationship, one that offers greater emotional, economic and social support than our present regime. Knowing that families differ in their capacity, availability and motivation, we need to consider the best approach for assisting both parents and children to minimize the stress and maximize their respective contributions.

Before outlining possible options it is helpful to consider the objectives we hope to achieve with separating and divorcing couples.

Objectives:

1. To inform parents at an early stage about options to assist them in resolving issues arising from their marriage breakdown.

2. To provide timely, affordable and appropriate assistance to parents and children experiencing separation (recognizing that there is both a social and economic cost to not providing such services at an early stage).

3. To encourage responsible and constructive parenting post separation, consistent with each parent's capacity and the children's best interests.

4. To minimize ongoing conflict between parents in the interests of safety and emotional wellbeing for children, the parents and extended family members..

5. To minimize the costs associated with the divorce process and its short and long term consequences.

Recommended Strategy:

For more than a decade, Family Law has moved away from a fault oriented, moralistic attempt to preserve the family to a regime that stresses individual self determination and fairness in the division of the spoils. Some say the pendulum has swung too far and argue for a return to the days that none of us can remember, except diehard "Leave it to Beaver" and "Cosby" fans. For some the answer is a return to fault provisions to punish those who end marriages and for others the answer is to require reconciliation programs or longer "cooling ofF' periods before divorce. While the answers vary, the common question is what type of process would minimize the harm to children who have little control over either the process or the outcome?

Research is consistent in demonstrating the devastating impact of ongoing parental conflict and, where both parents are competent, the potential loss of important emotional, social, and economic supports for children as a result of divorce. Our existing adversarial process has contributed to the problem and we now have an opportunity to rethink our approach. The following recommendations attempt to balance parental self determination with some well timed crisis intervention to assist parties who want to end their role as spouses, but who rarely want to end their role as parents.

The following recommendations have been tried in other jurisdictions in Canada and the United States, and have received the enthusiastic endorsement of families who have been required to participate:

Parent Education - minimum of 2 sessions of 3 hours each

Within 30-60 days of filing for separation or divorce, parents would be required to attend two Parent Education seminars. Couples where violence is alleged should attend separately and others should have the choice of attending separately or together.

First Session: Dispute Resolution Alternatives - 3 hours

The objective of the first session would be to inform parents about the options available for resolving their disputes. A family law lawyer and psychologist or social worker would describe the alternatives, such as mediation, assessments, arbitration and litigation, so that parents can make an informed choice about what would be most helpful in their circumstances.

Families would be given an introduction to the impact of separation and divorce on them, the process of "grieving" and some constructive ideas for how they might best seek support and/or counselling during this time of crisis.

This session could include a video, and families could be given information packages including brochures describing family law, the court process, mediation, counselling resources for adults and children, financial management, etc.

Second session: Helping Children Succeed After Divorce - 3 hours

The objective of the second session would be to focus on the needs of children. We know that divorce results in poorer outcomes emotionally and academically, higher rates of welfare, higher health care costs and more crime. Therefore we need to address this problem with all parents at the first opportunity. Parents need to learn about the impact of separation on children at different stages, including what factors have the most detrimental effect and what parents can do to minimize negative outcomes for their children. This session would include ideas for effective communication and problem solving between parents, communication with children, parenting responsibilities (including the need to financially support children), and alternatives for spending time with children that take into account the child's stage of development and their willingness and ability to parent. Tips could be offered for how to minimize or deal constructively with common conflict situations (eg the new partner, extended family members who take sides, finances, mobility, etc.).

Where appropriate, families would be encouraged to try a non adversarial approach, such as mediation to work out a parenting plan that would meet the best interests of their children, minimize conflict and encourage responsible behavior by both parents. Parents could be given an information package, including lists of resources, reading materials and helpful videos for them and the children.

It would be helpful, where numbers permit, to have separate Parent Education sessions for high and low conflict couples because the information given would be different if abuse or neglect were a concern. This has been done successfully in Massachusetts. That is, information about peace bonds, restraining orders, supervised access centres, anger management and victim support groups would be helpful for high conflict couples (where there are charges or allegations of serious abuse). Also parenting plans would need to be much more structured, with consideration to having third parties handle tranfers or supervision of children. This would not be necessary for cooperative parents.

Ideally, programs could be offered for children as a parallel to the adult programs, at the same time and in a different room.

These sessions could be provided at a minimal cost or on a sliding scale for parents of children under the age of 18. Professionals should be paid an honorarium, or in the pilot stage could volunteer their time on a rotating basis.

Opting Out

Family cases should include mandatory parent education, but should provide that where domestic violence, other forms of abuse or intimidation are an issue, the parties can opt out of the mediation process. All mediators should be well trained in domestic violence issues (a minimum of 14-21 hours is recommended) and should be required to conduct separate screening sessions wih couples to determine appropriateness. For cases in which domestic violence is not an issue, legislation and court rules should encourage, but not mandate, the parents to attend one meeting with a mediator, after which the clients should be able to opt out without prejudice. All mediators should be required to meet at least the standards set by the Ontario Association for Family Mediation for Practicing Mediators in order to qualify for the government's roster.

Length of Process and Goals of Family Mediation

One important issue is how long parents should expect family mediation to take. The best answer is that it will vary with the circumstances of the case. Family cases are often complex, sensitive and require considerable work on the difficulties in the relationship, in addition to the substantive issues. In these cases, mediation can contribute to clarifying different perceptions, reducing conflict, rebuilding trust and improving the level of cooperativeness between parents, even when agreement is not reached on all issues.

In my experience, most family cases dealing only with children's issues, take about 15 hours of interviews to complete and comprehensive cases take approximately an additional 10 hours. Also, about 3 to 5 hours is required to prepare a detailed parenting plan and/or a comprehensive Memorandum of Understanding that deals with all of the issues.

For high confiict couples, it is especially important not to put undue pressure on the parties to settle. These cases take additional time and require alterations in the usual process, such as offering shuttle mediation or the presence of a support person. In high confiict cases, the contribution of mediation would be to reduce the conflict through the development of a highly structured plan that includes minimal contact between the parents at transitions and pays attention to the safety needs of children and spouses.

In all mediation cases, but particularly with high conflict couples, independent legal advice is important to ensure that agreements are reached voluntarily, without duress and are based on adequate information.

Conclusion

These suggestions are offered in the hope that we are embarking on a new process that will offer parents and children a less damaging and more respectful approach to the crisis of family breakdown.