Category: Civil Procedure & Dispute Resolution

Mandatory Family Mediation and the Settlement Mission: A Feminist Critique

Noel Semple

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

Whose Best Interests?

Noel Semple

(2010) Osgoode Hall Law Journal, Vol. 48, No. 2, pp. 287-336 (Peer-reviewed).

This article compares the law of custody and access disputes with the procedure used to resolve them. I argue that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is controlled by and designed to protect the rights and interests of the adult parties to the dispute. Despite their doctrinal centrality in custody and access law, children are usually silent and invisible in custody and access procedure. To resolve this contradiction, I propose a focus on the costs and benefits of parenting litigation for the children involved. Too much parenting litigation occurs which has more costs than benefits for them. We should curtail some of these cases, and apply the proportionality principle to others. Finally, these children should have a stronger voice when decisions are being made about their future.

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Whose Best Interests? from Noel Semple on Vimeo.

A brief video presentation based on this paper.

The Silent Child

Noel Semple

(2010) Canadian Family Law Quarterly, Vol. 29, No. 1, pp. 1-25.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear “children’s evidence,” which comes either directly from the child, or from a neutral professional with child-related expertise. To assess the prevalence of children’s evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children’s evidence. Among the various varieties of children’s evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

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