“We make new families.” Findings from Mandated Mediation Studies in the U.S. and Australia

Abstract (English)

Mediation was brought into family court cases as a divorce litigation alternative. A popularized reason for this was the harm that hostile divorces cause to children. Today, parents are mandated across most U.S. states and as national policy in several countries to resolve child custody disputes through mediation. Mediation is both constructed as a non-legal process and yet is mandated by law. In today’s “family dispute resolution paradigm,” child custody disputes are reframed as family disputes over how to best co-parent in the best interests of children. However, debate persists between mediation as intended and in results. This paper contributes to debate through presentation of studies in the U.S. and Australia. Both studies used an ethnographic case study approach of following mediation cases through case management and sessions to final outcomes. The study sites were one U.S. family court mediation program and two Australian family relationship centre programs. Data collection focused on observing and recording mediation sessions, and conducting post-mediation interviews with mediators and parents. There are 42 cases in the U.S. study (2011-2012), and 14 cases in the Australian study (2019). Findings show how mediation as family dispute resolution has become a means of making and sustaining families in the wake of the dissolution of adult romantic relationships. Children have effectively replaced marriage as the center of family, which helps explain why family law professionals in each study often framed their work in child protection terms. While mediation was initially conceived as a means to empower parent self determination, it has also become a means for the state to keep parents together despite their efforts as adults to separate (and divorce). The paradox of mediation as law and not law, and as liberating for some and exclusionary for others is explored in the paper using case examples.