The Settlement-Seeking Judge: A Mock Trial

Fall 2013 (Published 2014), Journal of Dispute Resolution, Vol. 2013, No.2, pp. 301-329.

Judicial dispute resolution is common in family courts, where it usually consists of informal efforts to bring about settlement in pre-trial conferences. Many judges are especially eager to promote settlement in child custody and visitation (access) cases. This paper will critically evaluate informal JDR in parenting disputes, by asking whether and to what extent it is in the best interests of the children involved. It begins by identifying several features which distinguish custody and access disputes from other types of civil litigation, and which are relevant to the normative analysis of JDR in this context.

The paper then describes and evaluates three arguments which might be made against informal JDR in custody and access.  First, one might argue that there is too much settlement and not enough neutral adjudication of civil cases in general, or of parenting cases in particular. Second, one might applaud settlement in these cases but say that the efforts of the justice system to encourage it are ineffectual or inappropriate. Third, one might approve of settlement-seeking by the justice system in custody and access cases, but maintain that the system’s reliance on judges to do this work is mistaken.

The first two arguments can be rejected , but the author argues that the third has substantial merit. This paper will conclude by arguing that facilitative mediation by non-judges appears to have significant advantages over judicial settlement-seeking as a way to resolve custody and access cases without adjudication. Assigning settlement-seeking to facilitative non-judges could revitalize both settlement-seeking and adjudication in family court.

Online: Social Science Research Network, http://ssrn.com/abstract=1898629.

A version of this article also appears as a chapter in Tania Sourdin & Archie Zariski, eds., The Multi-Tasking Judge: Comparative Judicial Dispute Resolution.  Sydney: Thomson Reuters, 2013.

Mandatory Family Mediation and the Settlement Mission: A Feminist Critique

2012, Canadian Journal of Women and the Law, Vol. 24, No. 2, pp. 207-239.

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute.  Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation.  However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it.  Even in the absence of formal family mediation, litigating spouses are likely to be subjected to substantial informal pressure to settle from judges and other family justice system workers.  The article argues that the feminist critique might be more relevant to this “settlement mission” than it is to formal family mediation as it is practiced today.

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Judicial Settlement-Seeking in Parenting Disputes: Consensus and Controversy

(2012) Conflict Resolution Quarterly, Vol. 29, No. 3, pp. 309-332

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Online: SSRN, http://ssrn.com/abstract=1687268