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61 Commentary to American Bar Association Canons of Judicial Conduct, Canon 4(B). However,

jurisdictions differ on whether judges may regularly serve as media consultants. For instance,
the Wisconsin Judicial Conduct Advisory Committee in Opinion 99-3, April 14, 1999 held that
a judge may serve on the editorial board of the Wisconsin Opinions weekly newspaper only
if the judge “serves anonymously after the initial introduction of the editorial board in the
newspaper.” See also West Virginia Judicial Investigation Commission Opinion, November 25,
1997 permitting judges limited participation on radio talk shows discussing the legal system.
However, the Virginia Judicial Ethics Advisory Committee in Opinion 99-7, November 17, 1999
held that a judge may not “appear on a regular basis on a radio or television interview program
or talk show concerning legal issues.” But judges are not prohibited from making limited
media appearances. To determine whether judicial media appearances are prohibited, the
judge should consider “[t]he frequency of his appearance, the audience, the subject matter,
and whether the program is commercial or non-commercial.”
62 American Bar Association Canons of Judicial Conduct, Canon 4(C). Judges may speak on pend-

ing ballot initiatives that affect juvenile justice reform and “[n]othing in the code prohibits
judges from speaking to community groups in support of or in opposition to proposed
initiatives to change the judicial system.” Arizona Supreme Court Judicial Ethics Advisory
Committee, Opnion 96-8, August 15, 1996. See also Arkansas Judicial Ethics Advisory Commit-
tee Advisory Opinion No. 94-04, March 8, 1994 (judges may take public positions regarding
the merits of a bond measure to pay for construction of a new courthouse); Utah Ethics
Advisory Committee Informal Opinion 01-1, January 25, 2001 (Although a judge may voice
opinions regarding pending legislation, the judge may not “question the constitutionality of
a law, or express an opinion on how a statute might be interpreted by the judge.”).
63 Minnesota v. White, 536 U.S. 765 (2002).
Con¬dentiality 85

author™s judicial position and the activity does not interfere with the proper
performance of judicial duties.”64 An earlier Michigan case provided that
a dependency judge could write a book for judges, lawyers, and the public
describing child abuse law that used “materials from actual case histories”
because those cases had been ¬nalized.65
However, when was the last time that you saw a juvenile court judge
on television or heard a judge on the radio correcting false stereotypes,
generalizations, or statistics regarding the juvenile justice system? Where has
the juvenile law bench been during the irrational juvenile zero tolerance era?
From the mid-1980s through the year 2000, juvenile judges hearing juvenile
delinquency cases have failed the bench, the public, and children by not
speaking out on the punitive statutory changes to the juvenile system.66 And
many of those same juvenile court judges continue to implement hysteria-
created punitive juvenile statutes. Why have they failed to correct the record so
that the juvenile justice system both fairly and realistically balances the rights
of children, families, and citizens? Judges, who are mandated to complete
continuing legal education,67 must have been exposed to the statistics that
belie the media-fed juvenile crime hysteria. It is inconceivable that juvenile
court judges are ignorant of the most credible and complete juvenile justice
statistics that have been published by the U.S. Department of Justice for
over a decade. For instance, serious crime in America decreased 3 percent
from 1999 to 2000;68 in 1999, 90 percent of murder suspects were adults,



64 State Bar of Michigan Standing Committee on Professional and Judicial Ethics, Opinion Number

JI-76 (December 9, 1993) (1993 WL 566228).
65 State Bar of Michigan Standing Committee on Professional and Judicial Ethics, Opinion Number

CI“427. In Oklahoma information in actions ¬led before the Council on Judicial Complaints
is con¬dential, even as to the identify of the judicial of¬cer being investigated. Oklahoma
Attorney General Opinion No. 00-15 (February 23, 2000), at 2. However, the Attorney General
found unconstitutional the provision permitting punishment for contempt for any spectator
to the proceedings who discloses truthful information gleaned in that hearing. Id. at 9.
66 In 1997 the California Judicial Council issued the Special Task Force on Court/Community

Outreach, which determined that “it is critical for courts to become actively engaged in a wide
range of court and community collaboration efforts.” Veronica Simmons McBeth & Shelley
M. Stump, Reclaiming the Courts™ Historical Role: Judges as Leaders in Their Communities, 38
Judges J. 19, 22 (1999); California Standards of Judicial Administration § 39 requires judges to
“increase public understanding of the court system,” and to “increase public understanding
and promote public con¬dence in the integrity of the court system.”
67 California Standards of Judicial Administration Sections 25.2 and 25.3 require juvenile court

judges to attend juvenile law judicial education programs. In addition, Welfare and Institutions
Code § 264 requires the Judicial Council to conduct juvenile law conferences “for the purpose
of improving the administration of justice in the juvenile courts.”
68 Press Release, U.S. Dept. of Justice Federal Bureau of Investigation, Crime Index Trends,

January through June 2000 (Dec. 18, 2000).
86 Legal Ethics in Child Custody and Dependency Proceedings

not juveniles;69 in 1999, juveniles committed only 19 percent of all violent
crimes;70 and juvenile arrests have dropped every year since 1995.71
Juvenile dependency and family court judges have an equal ethical obli-
gation to speak out on legislation inimical to children served by those court
systems. However, how many juvenile law judges have you seen on 60 Min-
utes, 48 Hours, PBS, or anywhere in public correcting outrageous allegations
about the juvenile dependency system? These judges have failed our children
either through ignorance or fear of electorate backlash against judges por-
trayed as soft on crime and child abuse.72 It is up to the entire bar and bench
to protect judges who meet their ethical obligations of educating the public
from hysterical voters™ groups or unethical adversaries.
Because of the inherent authority and credibility of judges, should they
decide to enter public debate, they must be careful to research the issues
presented because decision makers might be lulled into blind acceptance of
judicial comments. For example, recently judges were involved in helping
design a bill to open California dependency trials to the press and the public
for the ¬rst time.73 The bill stated that if reporters are admitted to a hearing,

69 CRIME IN THE UNITED STATES, 1999, U.S. Dept. of Justice Federal Bureau of Investigation,
October 15, (2000), at 1“2. Even when the media report on an increase in violent crime, it
does so in a way that distorts the increase. For instance, on March 21, 2001, The Los Angeles
Times published a story by Dolondo Moultre with a large heading in bold type: “VIOLENT
CRIME RISES IN STATE™S LARGE CITIES, ” at A3. However, unless readers read the entire article
and go to page 21, they will not learn that a signi¬cant factor in the increased reports of some
violent crime was that, in cities like Glendale, California, police targeted “cases and got more
victims to come forward and ¬le criminal charges. . . . ” Id. at 21. This most recent report did
not delineate changes in the juvenile crime rate.
70 Juvenile Arrests 1999, JUV. JUST. BULL., Dec. 2000, at 1 (Of¬ce of Juvenile Justice and Delin-

quency Prevention, U.S. Dept. of Justice).
71 Id. at 1.
72 Fear of non-reelection to the bench is not a valid excuse for failing to meet the requirement

of educating the public on the administration of justice. Being a judge “means accepting crit-
icism, justi¬ed or unjusti¬ed, without always being able to respond. . . . [i]t means accepting
the task of explaining the judicial process, which is sometimes hard to understand, and con-
fronting adverse attitudes, which are sometimes hard to impact.” Joseph P. Nadeau, What It
Means to Be a Judge, 39 No. 3 JUDGES J. 34 (2000). Judges have failed our children by failing
not only to correct false juvenile crime statistics but also other misperceptions regarding
children in the court system. For instance, the public who serves as jurors, believes “the myth
that sexual allegations in custody visitation cases are relatively common [even though] the
present research strongly suggests that such allegations actually arise in only a small fraction
of all contested custody and visitation cases.” Nancy Thoennes, Child Sexual Abuse: Whom
Should a Judge Believe? What Should a Judge Believe, 27 No. 3 JUDGES J. 14 (1988).
73 I have a great deal of respect for the judges who helped promulgate this open court bill. I am

certain that they did not intentionally withhold critical data regarding the effects of the new
legislation on children. California Senate Bill 1391, 1999“2000 Reg. Sess. (Cal. 2000) sought
to amend Welfare and Institutions Code Section 346, which holds that all child dependency
cases are con¬dential.
Con¬dentiality 87

they may not publish the name of the minor who was allegedly abused. How-
ever, the judges did not present evidence that such a limitation on the press™s
First Amendment rights would likely be unconstitutional.74 Nor did the
judges indicate the results in the few jurisdictions that have opened depen-
dency hearings to the press. For instance, in New York the following data
on dependency proceedings were permitted to be published by the press.
In Matter of Justin A., the New York Law Journal published the following
facts: (1) the abused child™s full name, (2) his mother “had placed his [the
child™s] penis in her mouth . . . ,” and (3) the child engaged in “explicit sexual
behavior and language inappropriate to a child of his age . . . [including] acts
of exhibitionism and masturbation. . . . ”75 Nor did the judges or any of the
judges™ associations present evidence of the many other newspaper reports
on child dependency proceedings that published (1) the child™s full name
and the nature of the abuse suffered;76 (2) the address of the child victim;77
(3) the name of a murdered child and her siblings and the location of their
residence;78 (4) the name of a 15-year-old mother charged with murdering
her infant moments after its birth and the school she attended; 79 and (5) the
name of an abused child, the name and location of her school, her physical
af¬‚ictions, and details of the child abuse gynecological examination, which
included “the insertion of a cotton swab in . . . [her] vagina and anus.”80 It is
the obligation of juvenile dependency court judges who comment upon pro-
posed legislation to investigate thoroughly the likely results of the statutory
modi¬cations on the best interest of children.

74 William Wesley Patton, Pandora™s Box: Opening Child Protection Cases to the Press and Public,

27 W.S. U. L. REV. 181, 182, fn. 3 (2000). The U.S. Supreme Court has never ruled on the
question of whether a court can require the press to waive their rights to publish legally
obtained data, such as a minor™s name, as a prerequisite for admission to juvenile dependency
hearings.
75 224 N.Y. L.J. 30 (col. 2) (July 11, 2000).
76 Sheryl WuDunn, Japan Confronts Child Abuse, N.Y. TIMES, Aug. 15, 1999 at 7A.
77 5 Arrested on Charges of Child Abuse or Sex, ORLANDO SENTINEL, Sept. 6, 1999, at 2.
78 Lenny Savino, Family Tried to Prevent Little Girl™s Violent Death, ORLANDO SENTINEL,

May 26, 1999, at 1.
79 John Pacenti, Teen Mom Burdened by Loss of Childhood, Palm Beach Post, March 21, 2001,

at 1A.
80 Tennenbaum v. New York City, 222 N. Y. L. J. 25, col. 3 (October 15, 1999).
4 The Ethics of Alternative Dispute Resolution
in Child Custody and Dependency Proceedings




INTRODUCTION

America™s child custody and dependency systems would collapse if most cases
were not disposed of through some form of alternative dispute resolution.1
However, overloaded systems are not merely a recent phenomenon. During
the early child reform movements in the 1850s, child welfare systems were
laden with children™s cases. For instance, in 1879 the New York Children™s
Aid Society sent 48,000 poor New York children to live with another family,
and “after its ¬rst fourteen years the New York Society for the Prevention of
Cruelty to Children ˜investigated nearly 70,000 complaints of ill-treatment of
209,000 children. Prosecutions were pursued in 24,500 of these cases, result-
ing in almost 24,000 convictions and the removal of 36,300 children.™”2 So
what has changed? What new pressures are forcing an ever-growing per-
centage of child abuse and child custody cases to settle prior to a formal
adjudication?
First, the number of family law custody cases has exploded because of
increased divorce rates in America:

In 1987, the ¬rst year divorce statistics were collected, the total number of
divorces in the United States was just less than 10,000, about .03 per 1,000
people. By 1967, the divorce rate had jumped 140 times to 4.2 divorces per


1 Charlene Saunders, past Dependency Court Administrator of the Los Angeles Dependency
Courts, stated that “[w]ithout an early resolution program like mediation . . . [o]ur current
judicial of¬cers would be unable to respond to the current caseloads without an early res-
olution program.” California Senate Judicial Hearings, Senate Bill 1420, March 24, 1992,
contained in APPENDIX: JUVENILE SERVICES REPORT 1991“92 LOS ANGELES COUNTY GRAND
JURY, May 30, 1992, at 3“4.
2 Francis Barry McCarthy, William Wesley Patton, & James G. Carr, JUVENILE LAW AND ITS PRO-

CESSES: CASES AND MATERIALS 30 (3d ed. 2003); Corinne Schiff, Child Custody and the Ideal
of Motherhood in Late Nineteenth Century New York, 4 GA. J. ON FIGHTING POVERTY 403
(1997).

88
The Ethics of Alternative Dispute Resolution in Child Custody 89

1,000 people, or about 500,000. By 1981, the number of divorces had more
than doubled to 1.21 million, about 5.3 divorces per 1,000. Because modern
public policy recognizes divorce as a socially acceptable means of recording
family relationships, demographers estimate that approximately forty-¬ve
percent of all current marriages will end in divorce.3

Family law cases are the fastest growing type of litigation heard in civil
courts and have increased by “70% since 1984 . . . ; forty percent of children
will participate in the divorce of their parents and half of all children will live
with one parent prior to reaching adulthood.”4 However, even though the
number of family law cases has exploded, fewer than 2 percent are resolved
by a fully litigated court trial, rather than by alternative dispute resolution.5
There are three essential pressures to informally resolve family law custody
disputes. First, most jurisdictions require or strongly promote some form of
alternative dispute resolution, such as negotiation, mediation, or manda-
tory settlement conferences, prior to trial. “About a tenth of the nation™s
domestic relations courts have mediation programs, with the vast majority
authorizing the courts to compel participation by parties who contest cus-
tody or visitation.”6 Second, litigation is expensive; the earlier the case can
be informally resolved and the more formal court procedures such as call-
ing expert witnesses that can be avoided, the more able are parties to afford
to resolve their custody and visitation disputes. Finally, many parents are
unrepresented in child custody cases because there is no constitutional and
often no statutory right to counsel. Studies by the American Bar Association
found that the percentage of family law cases in which one parent proceeded
pro se rose from 24 percent of cases in 1980 to 88 percent today, and in 1990
“neither party was represented in 52 percent” of the cases.7 Considering that
the National Center for State Courts found that approximately 37 percent of
pro se litigants did not understand court procedures, it is not surprising that


3 Dennis P. Saccuzzo, Controversies in Divorce Mediations, 79 NOTRE DAME L. REV. 425, 425
(2003).
4 Nancy Ver Steegh, Yes, No, and Maybe: Informed Decision Making about Divorce Mediation
in the Presence of Domestic Violence, 9 WM. & MARY J. WOMEN & L. 145, 159“160 (2003).
5 Id. at 161. This 2 percent litigation rate of family law custody cases compares with an overall

litigation rate for all civil cases of 5 percent. Richard Birke & Craig R. Fox, Psychological
Principles in Negotiating Civil Settlements, 4 HARV. NEGOT. L. REV. 1, 1 (1999). “[A]n esti-
mated 50% of custody cases are uncontested and the parents involved in the dissolution
report negligible con¬‚ict. Most of the remaining custody cases are settled, with less than
2% ultimately resolved by the judge. However, about half of the contested cases involve
substantial or intense con¬‚ict over custody.” Nancy Ver Steegh, supra note 4, at 161.
6 Sarah R. Cole, Nancy H. Rogers, & Craig A. McEwan, MEDIATION: LAW, POLICY, PRACTICE

12-2 (2001).
7 Nancy Ver Steegh, supra note 4, at 165.
90 Legal Ethics in Child Custody and Dependency Proceedings

those parents would opt for an informal rather than formal court resolution
of their custody dispute.8
American child dependency courts have experienced a similar explosion in
court ¬lings. In 1999 approximately 568,000 children were placed in out-of-
home care in the United States, and the estimated cost of this alternative care
was $9.4 billion.9 However, perhaps the single empirical characteristic that
distinguishes between family law cases and dependency cases is that litigated
dependency cases often require multiple and continuing hearings to manage
the family™s problems. For instance, the national median time between the
disposition and removal of children from foster care after a permanency
planning decision in 1999 was 16.5 months.10 During that 16.5 months,
the average litigated dependency case will have resulted in an adjudication
hearing, a disposition, and between two and three periodic review hearings
and/or a permanency planning hearing. Thus, unlike family court cases, each
litigated dependency case results in multiple court hearings. For instance, in
1995, the child dependency courts in Los Angeles heard 77,187 review and
permanency planning hearings.11
It is therefore no wonder that more than thirty states have instituted
alternative dispute resolution procedures in child protection cases.12 How-
ever, mandatory alternative dispute resolution is much more problematic
in dependency proceedings than in family law custody cases because many
more dependency cases involve charges that can be prosecuted criminally.
One must wonder how “voluntary” is a parent™s cooperation in informal
dispute resolution when one consequence of failing to participate may be the
institution of criminal charges, whereas participation may lead to discovery
in criminal proceedings:
Formalized statutory alternative dispute resolution systems have permeated
almost all areas of both the civil and criminal law. However, the child depen-
dency system has continued to operate in a secret, informal . . . mediation

8 Id. at 166“167.
9 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, NATIONAL CLEARINGHOUSE ON CHILD

(April 2001). In
ABUSE AND NEGLECT INFORMATION, FOSTER CARE NATIONAL STATISTICS
1990, California, alone, had 30,435 children in foster care and another 24,945 in kinship
care. LEAGUE OF WOMEN VOTERS OF CALIFORNIA EDUCATION FUND, JUVENILE JUSTICE STUDY
COMMITTEE, JUVENILE JUSTICE IN CALIFORNIA PART II: DEPENDENCY SYSTEM, APPENDIX I:
(July 1998).
NATIONAL AND CALIFORNIA STATISTICS ON CHILD ABUSE AND NEGLECT
10 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, YOUTH AND FAMILIES CHILDREN™S

Annual
BUREAU, SAFETY, PERMANENCY, WELL BEING: CHILD WELFARE OUTCOMES, 1999
Report 11, 15.
11 INTER-AGENCY COUNCIL ON CHILD ABUSE AND NEGLECT, DATA ANALYSIS REPORT FOR 1996:

at 142 (1996).
STATUS REPORT ON CHILD ABUSE & NEGLECT IN LOS ANGELES COUNTY,
12 Kelly Browe Olson, Lessons Learned from a Child Protection Mediation Program: If At First
You Succeed and Then You Don™t, 41 FAM. CT. REV. 480, 480“481 (2003).
The Ethics of Alternative Dispute Resolution in Child Custody 91

and plea negotiation environment. Instead of addressing the real needs of
the dependency system, legislatures have focused new efforts at criminally
prosecuting alleged child abusers. Without fully considering the impact on
the best interests of children and families, state statutes have coordinated
agency resources in an effort to gain a few more criminal convictions. The
result has been an exponential increase in criminal child abuse prosecu-
tions that have substantially increased the risk to parents who cooperate in
dependency non-statutory alternative dispute resolution.

The schizophrenic state policies of encouraging parents to admit child
abuse in civil dependency cases while increasing criminal prosecutions and
district attorneys™ access to previously con¬dential juvenile court reports,
¬les, and statements have a few stark implications. First, fewer parents will
plead to civil charges or will plead in a system of secrecy in which they waive
constitutional rights without knowing the consequences. Early efforts at
family reuni¬cation will decrease, thus increasing the likelihood of parental
termination that will further needlessly separate family members and bur-
den taxpayers. Second, because parents will refrain from making important
con¬dential statements in dependency mediation for fear of criminal pros-
ecution, fewer prosecutors will gain child abuse admissions for use in the
criminal prosecution, thus decreasing the effectiveness and social value of
the new emphasis on prosecutorial access to dependency court records. These
policies will result in a net social loss both from humanistic and economic
perspectives.13
Because child abuse allegations can precipitate ¬ve distinctively different
legal investigations in ¬ve different courts, attorneys must be cognizant of the
intersystem rami¬cations of tactical decisions concerning alternative dispute
resolution: “In juvenile court, dependency cases focus upon the protection
of the abused child; delinquency cases can involve abuse of one child by
another; in criminal court, the alleged abuser is prosecuted for his acts; in
family court, parents can allege child abuse against each other; and the abused
child can bring a civil suit against the alleged abuser for damages and other
relief.”14
Many attorneys have had little formal training in the various modes of
alternative dispute resolution; however, the duty of competence requires such
knowledge so that clients are not harmed by the process. Thus, this chapter,
unlike the previous ones, both surveys the ¬eld of dispute resolution and

13 William Wesley Patton, Child Abuse: The Irreconcilable Differences Between Criminal Pros-
ecution and Informal Dependency Court Mediation, 31 U. LOUISVILLE J. FAM. L. 37, 38“39
(1993).
14 Leonard Edwards, The Relationship of Family and Juvenile Courts in Child Abuse Cases, 27

SANTA CLARA L. REV. 201, 204 (1987).
92 Legal Ethics in Child Custody and Dependency Proceedings

delineates its ethical boundaries. This section introduces the debates, tactics,
dangers, and ethical questions inherent in child custody and dependency
alternative dispute resolution. Because the ¬rst formal mediation process in
these cases did not occur until between 1981“3 in Los Angeles, the body of
law is meager, but is rapidly developing as parties and state bar associations
begin to ferret out the minimal ethical standards to be applied.15


I. ALTERNATIVE DISPUTE RESOLUTION VERSUS LITIGATION
IN CUSTODY CASES

Litigation critics have focused on several aspects of the zealous battle in
public tribunals that they assert are antithetical to the purposes of child
custody and dependency proceedings. One mediation proponent has identi-
¬ed these essential characteristics of litigation: (1) openness versus privacy;
(2) formal due process procedures; (3) objectivity and impartiality; (4) ratio-
nality of outcomes; (5) predictability, consistency, and uniformity of results;
(6) easy access; and (7) citizen participation.16 Others have identi¬ed these
salient characteristics of court litigation: (1) public accountability of judges,
(2) public norms, (3) precedent controlling, (4) appealable decisions,
(5) public funding, (6) little control over selection of judges, (7) time-consu-
ming, (8) polarizing, (9) noncompromising, (10) limitation on remedies,
(11) expensive, and (12) incivility.17
Perhaps the strongest criticism of trials in custody cases is that the adver-
sarial model “increases trauma and escalates con¬‚ict [and] [c]hildren often
suffer the most in the ˜tug of war.™”18 Between 50 to 70 percent of surveyed
parents found litigated custody disputes to be “impersonal, intimidating,
and intrusive,” and 71 percent stated that litigation escalated the level of ani-
mosity among parents.19 Because most child custody and dependency cases
involve a continuing relationship between parents and children, the exacer-
bated tension among the parties that results from litigation makes ¬nding
long-term solutions more dif¬cult.
In addition, Carrie Mendel-Meadow, one of the strongest proponents of
alternative dispute resolutions, argues that trials and their “binary” solutions

15 Kelly Browe Olson, supra note 12, at 481. “California has long been in the vanguard of
the public sector march toward mediation. In 1981, it became the ¬rst state to mandate
child custody mediation.” Ellen A. Waldman, The Challenge of Certi¬cation: How to Ensure
Mediator Competence while Preserving Diversity, 30 U.S.F. L. REV. 723, 723 (1996).
16 Robert A. Creo, Mediation 2004: The Art and the Artist, 108 PENN. ST. L. REV. 1017, 1025“1026

(2004).
17 John W. Cooley, MEDIATION ADVOCACY 8“9 (2d ed. 2002).
18 Dennis P. Saccuzzo, supra note 3, at 425, 426.
19 Nancy Ver Steegh, supra note 4, at 85.
The Ethics of Alternative Dispute Resolution in Child Custody 93

of right/wrong and win/lose are not capable of resolving the complicated
issues inherent in many legal disputes: “The inability to reach a binary reso-
lution of these disputes may result because in some cases we cannot determine
the facts with any degree of accuracy. In other cases the law may bestow con-
¬‚icting, though legitimate, legal rights giving some entitlements to both,
or all, parties. And, in yet another category of cases, human or emotional
equities cannot be divided sharply.”20
It is not surprising, then, that jurisdictions quickly championed alterna-
tives to trials in custody cases, not only to avoid increased acrimony and to
provide more ¬‚exibility in the remedies involved but also in an effort to cut
court costs. Some jurisdictions have realized savings of as much as 39 percent
in child protection cases settled through mediation.21
Both negotiation and arbitration have been used in some jurisdictions to
help informally resolve custody disputes. Negotiation is the most frequently
used alternative dispute resolution mechanism in child custody and protec-
tion cases. It has the advantage of being the most ¬‚exible, least expensive,
and fastest mechanism of party agreement. However, negotiation does not
provide mandatory discovery, has no third party to de¬‚ect animus among
the parties, is subject to severe power imbalances, is not subject to public
and/or due process safeguards, and usually is not binding and enforce-
able without rati¬cation by the court.22 In addition, many jurisdictions
have rejected arbitration as the central dispute resolution methodology in
custody and dependency cases, in part because of its formal, often adver-
sarial environment in which parties testify under oath and in which the
scope of con¬dentiality is often within the discretion of the parties, rather
than being statutorily de¬ned.23 Some, however, argue that arbitration is
a good vehicle because unlike court trials it (1) is less expensive, (2) pro-
vides parties with the ability to de¬ne norms, (3) relaxes formal eviden-
tiary standards, (4) eliminates or limits pretrial discovery, and (5) usually

20 Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern Multicultural

World, 38 WM. & MARY L. REV. 5, 5“7 (1996).
21 Kelley Browe Olson, supra note 12, at 483. Three reasons for settlements are that they are
cheaper, avoid all-or-nothing solutions, and permit more creative and individualized dis-
positions. Brian J. Shoot, “Don™t Come Back without a Reasonable Offer”: The Extent of, and
Limits on, Court Power to Foster Settlement, 76 N.Y. ST. B. J. 10, 11 (2004).
22 “The most notable structured difference between the adversary system . . . and most settle-

ment negotiations is the absence of a third-party neutral . . . This fact alone may render the
adversarial ethic useless as a justi¬cation for attorneys™ otherwise immoral or unethical con-
duct in settlement negotiations.” Brian C. Haussman, The ABA Ethical Guidelines for Set-
tlement Negotiations: Exceeding the Limits of the Adversarial Ethic, 89 CORNELL L. REV. 1218,
1230 (2004).
23 Carrie Menkel-Meadow, Ethics in Arbitration and Related Dispute Resolution Processes:

What™s Happening and What™s Not, 56 U. MIAMI L. REV. 949, 962 (2002).
94 Legal Ethics in Child Custody and Dependency Proceedings

excludes appellate remedies.24 One commentator describes the essence of
arbitration as

[A]n adjudicatory process in which a third party neutral simply decides
the dispute. It differs substantially [from court trials], however, in that
the proceeding is informal rather than formal, and is not bound by tradi-
tional rules of evidence or procedure. As decisionmakers, arbitrators wield
considerably more unchecked power than their public judicial counter-
parts. . . . Moreover, arbitrators generally are free from the constraints of
substantive law in either the procedures by which they conduct their hear-
ings, or in the standards they use to resolve disputes. In fact, arbitrators
need not and often do not have legal training. Finally, their decisions,
called “awards,” generally are ¬nal, binding, and enforceable by courts,
and generally may not be reversed on substantive grounds.25

But by far the most universally adopted and often mandated method of
dispute resolution in child custody and dependency disputes is mediation.
Unlike negotiation, which does not involve a third-party neutral to help the
parties brainstorm a mutually acceptable resolution, mediation provides a
facilitator who attempts to separate bitter personal battles from the center of
the dispute, the best interest of the children. Mediation has been de¬ned as

a process in which a mediator, an impartial third party, facilitates the resolu-
tion of family disputes by promoting the participants™ voluntary agreement.
The family mediator assists communication, encourages understanding and
focuses the participants on their individual and common interests. The fam-
ily mediator works with the participants to explore options, make decisions
and reach their own agreements.26

Mediation was quickly adopted because it (1) enhances the voluntary nature
of participation in dispute resolution, (2) fosters party cooperation and com-
munication, (3) provides a neutral non-decision maker to facilitate discus-
sion, and (4) gives to the parties responsibility for determining the rules and

24 John W. Cooley, supra note 17, at 8“9.
25 Richard C. Reuben, Democracy and Dispute Resolution: The Problem of Arbitration, 67 LAW
CONTEMP. PROBS. 279, 296 (2004).
26 Nancy Ver Steegh, supra note 4, at 170 [quoting from the Model Standards of Practice for

Family and Divorce Mediation]; see also Andrew Schepard, An Introduction to the Model
Standards of Practice for Family and Divorce Mediation, 35 FAM. L Q. 1, 3 (2001). “Mediation
is ˜a process by which a neutral mediator . . . assists the parties in reaching a mutually
acceptable agreement as to issues of child custody and visitation.™ The role of the mediator
is to aid the parties in identifying the issues, reducing misunderstanding, clarifying
priorities, exploring areas of compromise, and ¬nding points of agreement.” Carter v.
Carter, 470 S.E. 2d 193, 201, fn. 10 (West Virginia 1996) [quoting Kansas Stat. Ann. §
23“601 (1995).
The Ethics of Alternative Dispute Resolution in Child Custody 95

processes of dispute resolution.27 Mediation can, under ideal circumstances,
provide parties ownership of brainstorming solutions through their par-
ticipation in the process and decision-making responsibility.28 Mediation™s
values of ¬‚exibility, reduced trauma to children, instruction to parents on
how to informally resolve future disputes, and more cost-effective methods
of determining family and children™s best interests quickly became evident
to legislators and courts.29


II. ADVANTAGES AND DISADVANTAGES OF ALTERNATIVE
DISPUTE RESOLUTION IN CHILD CUSTODY
AND DEPENDENCY PROCEEDINGS

Several studies and surveys have indicated that resolving child custody and
protection cases without a trial is bene¬cial for the parties. Settlement rates in
child protection mediation “have ranged from 70% to 89%, mediated plans
are produced 1 to 2 months sooner than nonmediated plans and satisfaction
rates varied but average between 75% and 90%.”30 An Arkansas study found
that “there were 295 days between the initial case ¬ling and permanent place-
ment for mediated cases and 553 days for nonmediated cases.”31 A similar
study in California child dependency cases found that 78 percent of the medi-
ated cases reached a full settlement agreement and that the agreements were
“reached approximately one month sooner than those in a typical litigation
process. . . . ”32 In addition, results in both family custody and child protec-
tion cases indicate that the long-term success rate for family harmony and
reuni¬cation was much higher for mediated than for litigated outcomes.33
A Wisconsin study of family law mediation found that

(1) the mediation group was by far more successful in reaching agree-
ments than the control group consisting of persons who participated only
in the adversarial process; (2) those who mediated were much more satis-
¬ed with the fairness of the ¬nal agreements; (3) the parties were less likely
to have problems complying with the agreements; (4) relations between
ex-spouses with mediated custody/visitation agreements were improved;

27 James R. Coben, Gollem, Meet Smeagol: A Schizophrenic Rumination on Mediator Values
Beyond Self-Determination and Neutrality, 5 CARDOZO J. CONFLICT RESOL. 65, 68 (2004).
28 Kelley Brow Olson, supra note 12, at 485.
29 In re Paternity of Stephanie R. N. v. Wendy L. D., 541 N.W. 2d 838; 1995 WL 56300, 56318

(Wisc. 1995; unpublished opinion). For instance, California Family Code § 3161 has as one
of its central goals in mediation to “reduce acrimony” among the parties.
30 Kelley Browe Olson, supra note 12, at 486. 31 Id. at 488“489.
32 Pamela A. Airey, Comment, It™s a Natural Fit: Expanding Mediation to Alleviate Congestion

in the Troubled Juvenile Court System, 16 J. AM. ACAD. MATR. LAW. 275, 288“289 (1999).
33 Id. at 288“289.
96 Legal Ethics in Child Custody and Dependency Proceedings

(5) a signi¬cantly greater number of mediation couples arrived at joint
custody arrangements; and (6) mediation saved time and money.34
A New York study of dependency courts found a direct correlation between
the empowerment of parents through mediation and the long-term success
of mediated settlements: “[By] allowing the parties to take control of their
lives [through mediation], compliance with the agreement was higher when
all parties concerned participated in the decision making.”35
If mediation in child custody and dependency cases is cheaper, results
in more individualized settlements that are more likely to succeed, reduces
trauma to and speeds permanency for children, and promotes family har-
mony, why would anyone reject the opportunity to engage in alternative
dispute resolution in these cases?36 However, as one scholar has demon-
strated, “[t]he very elements that make mediation so appealing compared
to the adversarial model also create potential dangers and raise substantial
professional, ethical, and legal issues.”37
Commentators have noted a number of signi¬cant problems associated
with mandatory mediation of child custody and dependency proceedings.
Both the Model Code of Mediation and the Model Family Standards suggest
that as “a central tenet” mediation must be voluntary.38 Because alterna-
tive dispute resolution begins with the premise of providing willing adver-
saries an opportunity to gain control over formal processes and to expe-
rience empowerment, many have acknowledged the inherent disconnect
with required mediation: “Mandatory mediations pose . . . [a] danger for
the weaker spouse precisely because she feels intimidated not only by her
husband and the mediator, who is promoting the process, but she is here
literally trapped by the requirement that she participate in a process without
adversarial safeguards.”39
Mandatory mediation is more dangerous for two groups of parties “
marginalized individuals and victims of domestic violence. Several critics

34 In re Paternity of Stephanie R.N., supra note 29, at 18. In other forms of alternative dispute
resolution, such as family group conferencing, such procedures “help rebuild family rela-
tionships, allow children a sense of community acceptance, and instill feelings of pride and
self-importance. . . . ” Matthew Kogan, The Problems and Bene¬ts of Adopting Family Group
Conferencing for PINS (CHINS) Children, 39 FAM. CT. REV. 207, 208 (2002).
35 Pamela L. Airey, supra note 32, at 281.
36 Mediation “helps families and courts by lowering the amount of time that children spend

in foster care and the amount of costs for courts and agencies.” Kelly Browe Olson, supra
note 12, at 480.
37 Jay Folberg & Alison Taylor, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS

WITHOUT LITIGATION 244 (1984).
38 Nancy Ver Steegh, supra note 4, at 190“191.
39 Marsha B. Freeman, Divorce Mediation: Sweeping Con¬‚icts under the Rug, Time to Clean

House, 78 U. DET. MERCY L. REV. 67, 87 (2000).
The Ethics of Alternative Dispute Resolution in Child Custody 97

have argued that women and minorities suffer in alternative dispute resolu-
tion in which court and legislative due process protections are often absent. As
early as 1985 Richard Delgado warned about the dangers of prejudice inher-
ent in con¬dential informal dispute processes “with resulting adverse impact
on minority participants.”40 “In 1991, Trina Grillo wrote eloquently about
the risks, particularly for women in divorce mediation, posed by mediators™
intentional de-emphasis on principles, blame, and rights and their active
discouragement of anger and discussion of past fault.”41 Because mediators
attempt to separate parties™ animosity from problem solving and long-term
relationships, “the mediator is nevertheless invalidating notions of blame
and denigrating the weaker spouse™s attempts to assert her rights, both of
which would actually be more fairly represented in a adversarial setting.”42
Others have asserted that mediator “neutrality” is a myth because of both
internal and external pressures upon the mediator. First, because the alter-
native dispute resolution system, unlike a court trial, is private, there is little
accountability regarding the mediator™s performance. Unconscious mediator
bias is thus not ameliorated through public exposure and normative eval-
uation. “In general, people have great dif¬culty divorcing themselves from
their idiosyncratic role suf¬ciently to take an objective view of disputes in
which they are involved . . . and people generally seek evidence that would
con¬rm initial hypotheses, to a greater extent than they seek ˜discon¬rming™
evidence.”43 In addition, studies have demonstrated that mediators are often
fooled by slick ingratiating parties. For instance, a

California study of mandatory court mediation found that documented
pathological liars were able to fool virtually everyone, including the medi-
ator, into believing that they were both the reasonable party in the divorce
and the better parent, while making the weaker spouse™s fears seem hys-
terical or irrational. Some women will predictably act defensive from the
beginning of the mediation, fearing exactly this result, thereby unwittingly
reinforcing this negative view of themselves.44

In addition, external pressures of budget de¬cits and overloaded mediation
dockets have led mediators to abandon neutrality in order to achieve more
rapid settlement. “A Los Angeles custody mediation program . . . suggests
that caseload pressures will cause the mediator to cut the sessions short
if that mediator has authority to issue an in¬‚uential recommendation to
the trier of fact. Shortened mediations, in turn, will discourage the thorough

40 James 41 Id.
R. Coben, supra note 27, at 65, 72.
42 Marsha B. Freeman, supra note 39, at 86.
43 Richard Birke & Craig R. Fox, supra note 5, at 1, 14, 26.
44 Marsha B. Freeman, supra note 39, at 87.
98 Legal Ethics in Child Custody and Dependency Proceedings

development of information and the negotiation that will facilitate the settle-
ment of future family disputes.”45 And research demonstrates that the longer
the mediation sessions last, the more likely a settlement will be reached.46 The
Society for Professionals in Dispute Resolution warned that “˜[c]oercion to
settle in the form of reports to the trier of fact and of ¬nancial disincentives
to trial should not be used in connection with mandatory mediation.™”47
However, some family court systems permit or require the mediator to make
a recommendation to the court regarding child custody if the parties do not
settle the dispute in mandatory mediation.48 In addition, as attorneys have
become more involved in mandatory mediations, “the process has become
less focused on empowering citizens and more focused on forcing these cit-
izens to confront and become reconciled to the legal, bargaining and trans-
actional norms of the courthouse” rather than developing rules and norms
by themselves.49 And others have argued that forcing parties to contribute
to the cost of mandatory mediation is antithetical to the historical impetus
of providing parties a voluntary opportunity to participate in alternative
dispute resolution. For instance, the court in Hogoboom v. Superior Court
held that a local court rule in child custody cases requiring a payment of
$110 per party for participation in court-annexed mediation was illegal.50
Because of more aggressive mediators and a restriction on parties™ ability
to help shape mandatory mediation processes, the percentage of dissatis¬ed
mediation consumers is growing.51
Many jurisdictions exclude cases involving domestic violence from par-
ticipation in mandatory child custody and/or dependency cases.52 Because


45 Sarah R. Cole, Nancy H. Rogers, & Craig A. McEwen, MEDIATION: LAW, POLICY, PRACTICE
7-28 to 7-29 (2001).
46 Kelley Browe Olson, supra note 12, at 488“489.
47 Cole et al. at 7“30.
48 Id. at 7“21; see, e.g., California Civil Code § 3183.
49 Nancy A. Welch, The Place of Court-Connected Mediation in a Democratic Justice System, 38

WM. & MARY L. REV. 5, 137“138 (2004).
50 Hogoboom v. Superior Court, 59 Cal. Rptr. 2d 254, 267 (California 1997).
51 Nancy Ver Steegh, supra note 4, at 189; Peter H. Thompson, Enforcing Rights Generated in

Court-Connected Mediation “ The Tension Between the Aspirations of a Private Facilitative
Process and the Reality of Public Adversarial Justice, 19 OHIO ST. J. DISP. RESOL. 509, 512
(2004).
52 Although most courts protect domestic violence victims from being revictimized during

the custody trial [similar to protection of rape victims under rape shield laws], the court
in Christina L. v. Harry J. L., Jr., 1995 WL 788196, at 23 (Delaware Family Court 1995;
unpublished) held that a father can raise the mother™s domestic violence victimization to
demonstrate that she might not be able to protect her children should they be threatened:
“Just as there are issues to be considered in the assessment of the abuser™s ¬tness for cus-
tody, so are there questions to be asked of the spouse abuse victim . . . [s]peci¬cally, what
is the likelihood of her entering into another abusive relationship and therefore exposing
The Ethics of Alternative Dispute Resolution in Child Custody 99

approximately 30 percent of women will be assaulted by a partner at some
time in their lives, and because domestic violence of some degree occurs
in nearly 25 percent of homes in the United States, a high percentage of
child custody and dependency cases are potentially unavailable for manda-
tory mediation.53 The Minnesota statute is a common form of exclusion:
“If the court determines that there is probable cause that one of the parties,
or a child of a party, has been physically or sexually abused by the other
party, the court shall not require or refer the parties to mediation or any
other process that requires parties to meet and confer without counsel, if
any, present.”54 Domestic violence cases are excluded from mediation for a
number of reasons:

Critics . . . argue that victims of domestic violence should not have to nego-
tiate for their physical safety. Moreover, forcing victims to negotiate with
their abusers communicates the message that domestic violence is not a
crime. Perhaps the most serious criticism of mediation of domestic vio-
lence comes from empirical studies that have revealed that battered women
are even more likely to be abused after separation if they went through
mediation rather than the traditional adversarial process.55

A 1995 study indicated that women of domestic violence perceive them-
selves as having less autonomy and power than nonabused women.56 Even
so, some proponents of mediation in domestic violence cases argue that
mediation “actually empowers parties because it involves them both in the
resolution process” and provides “an opportunity to end the cycle of vio-
lence.”57 Others argue that domestic violence victims should be neither pre-
cluded from nor required to engage in mediation, but rather should have the
choice regarding participation, which in itself, provides control and empow-
erment.58 And some jurisdictions, like California, provide victims of domes-
tic violence with court-paid counselors to accompany them in mandatory
mediation of child custody disputes and also provide for separate mediation
sessions, if necessary, so that the victim does not have to face the alleged
batterer.59


her children to violence; to what degree has her emotional stability been compromised by
the abuse, and, how does she relate to her children and what is her rationale for seeking
custody?”
53 Nancy Ver Steegh, supra note 4, at 148.
54 Minnesota Statute § 518.619 (2003).
55 Dennis P. Saccuzzo, supra note 3, at 425, 435.
56 Nancy Ver Steegh, supra note 4, at 185.
57 Dennis P. Saccuzzo, supra note 3, at 434.
58 Nancy Ver Steegh, supra note 4, at 147.
59 Sarah R. Cole, supra note 45, at 7“11; California Family Code § 3181.
100 Legal Ethics in Child Custody and Dependency Proceedings

III. COMING FULL CIRCLE: THE EVOLUTION OF CHILD
CUSTODY MEDIATION

Initially, alternative dispute resolution was a reaction to the formalized court
structures that prohibited parties from designing procedures that were indi-
vidualized to their speci¬c needs and would promote long-term relationships
while empowering them in learning how to resolve future domestic disputes.
However, once mandatory mediation became the accepted norm in child
custody and dependency proceedings, one set of critics declared that alter-
native dispute resolution had become no more than an expedited adjunct to
formal litigation:

Once upon a time, people sought to avoid the courts and turned to an
alternative to litigation. Third parties selected by the disputants would bring
the principals together and urge them to reconcile. The disputants mutually
shaped the process and agreed to the ultimate outcome. . . . Before long, the
courts got involved and began using the process to divert cases it couldn™t
or didn™t want to handle. . . . Observers began to question the fairness of
its use. Some lawyers found the alternative threatening because it seemed
antithetical to the accepted role of the adversarial system, and others began
to view this alternative as an opportunity to gain tactical advantages in
litigation. Courts and policy makers began exercising more oversight and
control over the process. Eventually, disputants found that the alternative
was growing more and more similar to, if not sometimes indistinguishable
from, the adjudication for which it was meant to substitute. . . . Disputants
had lost control over the process. . . . 60

Professor Reuben has identi¬ed the following as democratic values inherent
in public trials: (1) accountability, (2) transparency of process, (3) rationality,
(4) due process, and (5) citizen participation.61 He alleges that mandatory
alternative dispute resolution is undemocratic because it lacks those inherent
properties and violates one of the historical aspects of American democracy
regarding the “importance to U.S. citizens of having their day in court as a
fundamental tenet of the U.S. justice system. . . . ”62 However, other experts
respond that those who say that settlements are undemocratic are wrong
because “it privileges the group™s (or society™s) need for public discourse
over the needs (dare I say rights) of individuals to seek the most compre-
hensive and Pareto optimal solution possible to their dispute, by sharing

60 Douglas Yarn, The Death of ADR: A Cautionary Tale of Isomorphism through Institutional-
ization, 108 PENN. ST. L. REV. 929, 929“930 (2004).
61 Richard C. Reuben, supra note 25, at 279, 285.
62 Id. at 310. See also Nancy A. Welsh, supra note 49, at 5, 137“138, who suggests that “mediation

is not infusing the courts with a new manifestation of democracy.”
The Ethics of Alternative Dispute Resolution in Child Custody 101

information that is beyond or different from what a court might order them to
reveal.”63
Even many of the leaders of the alternative dispute resolution revolution
are beginning to question the advisability of mandatory court-annexed set-
tlement mechanisms. “The Romantic days of alternative dispute resolution
appear to be over. To the extent that proponents of ADR, like myself, were
attracted to it because of its promise of ¬‚exibility, adaptability, and creativity,
we now see the need for ethics, standards of practice and rules as potentially
limiting and containing the promise of alternatives to rigid adversarial modes
of dispute resolution.”64


IV. THE LEGITIMACY OF INFORMAL SETTLEMENTS AND THE LIMITS
OF MEDIATORS™ AND ARBITRATORS™ JURISDICTION IN
CHILD CUSTODY AND DEPENDENCY PROCEEDINGS

It is one thing to determine that alternative dispute resolution is bene¬cial to
parents and/or children, but it is another to determine that the legislature can
strip courts of their inherent power to determine the best interest of children
through their equitable powers. In England, with the abolition of the Court
of Wards, which was concerned primarily with children™s property interests,
the Court of Chancery asserted authority over the best interest of children
through the doctrine of parens patriae.65 English courts™ jurisdiction over
child custody and visitation in dependency cases was clari¬ed in 1839 with
Parliament™s passage of the Custody of Infants Act.
The story of court jurisdiction over child custody and dependency took a
different path in the United States:

In America the law respecting the protection of children was not as devel-
oped as in England. The colonists focused on two major aspects of English
Common law, “the rules” of family government; and the traditions and
child-care practices of the Elizabethan Poor Laws of 1601. . . . Soon, Calvinist
theories of poverty as idleness and sin permeated de¬nitions of the best
interest of children and children were separated from parents for “neglecting


63 Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense

of Settlement (In Some Cases), in MEDIATION: THEORY, POLICY AND PRACTICE 39, 61 (Carrie
Menkel-Meadow, ed., 2001).
64 Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from

the Adversary Conception of Lawyers™ Responsibilities, in MEDIATION: THEORY, POLICY AND
PRACTICE 429, 430 (Carrie Menkel-Meadow, ed., 2001).
65 See, T. Pluckett, A CONCISE HISTORY OF THE COMMON LAW 544 (1956); Corcellis v. Corcellis

No. 1, 23 English Reports 1, Ch. 1673; Shaftsbury v. Hannam, 23 English Reports 177,
Ch. 1677.
102 Legal Ethics in Child Custody and Dependency Proceedings

their formal education, not teaching a trade, or [who] were idle, dissolute,
unchristian or ˜uncapable™”[sic].66
By the time of the child reform movement, which occurred between 1820 and
1860, states had started vesting determinations of children™s best interests in
the courts. And by 1899 Illinois established the ¬rst juvenile court in the
United States, which supplanted dozens of child welfare organizations as the
center of American child welfare law.67
Based upon courts™ historical jurisdiction over children™s welfare, two
questions arise in relation to alternative dispute resolution: (1) May a legis-
lature divest courts of such jurisdiction; and (2) may a court delegate child
custody decision making to third parties, such as mediators and arbitrators?


A. Finality and Scope of Arbitrated and Mediated Custody
and Dependency Settlement Agreements
Many jurisdictions have held that binding arbitration in child custody
matters is void because it violates public policy. Ohio, South Carolina, and
North Carolina are among those states with court opinions prohibiting
parents from entering into binding arbitration agreements to resolve
child support disputes because they are void against public policy . . .
[but] [o]ther jurisdictions [like Pennsylvania, New Jersey, Massachusetts,
Maryland, and Texas] permit divorcing parties to submit to binding and
non-binding arbitration to resolve child support, custody, and visita-
tion disputes so long as such arbitration awards are subject to judicial
review.68
In Kelm v. Kelm69 an Ohio court noted that even though the law “permits par-
ties to voluntarily waive a number of important rights,” arbitration of child
custody issues violates public policy because binding arbitration would strip
courts of their power and duty to determine children™s best interests. However,
the court held that as long as a court reviews the arbitration award, public

66 McCarthy, Patton, & Carr, supra note 2, at 16“17, relying upon Thomas P. Mason, Child
Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C. L.
REV. 293 (1972); Douglas R. Rendleman, Parens Patriae: From Chancery to the Juvenile
Court, 23 S.C. L. REV. 205 (1971).
67 See Fox, Juvenile Justice Reform: An Historical Perspective, 22 STAN. L. REV. 1187 (1970);

Thomas Mason, supra note 66, at 293; Corinne Schiff, supra note 2, at 403: P. A. PLATT,
THE CHILD SAVERS 9 (1969).
68 Cohoon v. Cohoon, 770 N. E. 2d 885 (Indiana Court of Appeal 2002; superceded by Cohoon

v. Cohoon, 784 N. E. 2d 904, 905 (Indiana Supreme Court 2003) [holding that because of
irregularities on appeal “[w]e ¬nd it unnecessary in this case to make a judgment on the
validity of binding arbitration in domestic relations matters.”].
69 Kelm v. Kelm, 749 N.E. 2d 299, 225“226 (Ohio 2001).
The Ethics of Alternative Dispute Resolution in Child Custody 103

policy is satis¬ed. Surprisingly, the Kelm court held that judges™ review is not
de novo because that would result in expensive and time-consuming proce-
dures that are not “advantageous to the best interests of children” because
custody decisions will be postponed.70
A majority of states permit wide discretion to those engaged in alter-
native dispute resolution to fashion child custody and visitation awards
as long as courts must or have discretion to review those settlements. For
instance, courts in Florida,71 Indiana,72 Alaska,73 California,74 Michigan,75
and Missouri76 have all held that stipulations or settlement agreements
between the parties in child abuse and domestic custody cases cannot divest
the court of its jurisdiction to review and approve the settlement, nor do
the mediator™s ¬ndings bind the court regarding fact-¬nding. In addition,
many other jurisdictions have gone further in holding that the court may not
delegate its ultimate authority of determining children™s best interests to any
third party, such as an arbitrator, mediator, or special family court master.
For instance, in a California case, In re Marriage of Timothy E. Slayton,77 the
California court of appeal held that although the trial court may consider the
mediator™s report and the mediator™s interview with the child, the court may
not delegate all fact-¬nding and decision making to the mediator. In a Con-
necticut case the parents stipulated that future child custody disputes would
be subject to the binding decision of an attorney; however, the court held
that such a condition could not be approved by the court because it would
be an illegal delegation of judicial authority.78 As a Florida court noted,
“[W]hile a trial court can order the parties to mediate the issues of visitation,
it cannot delegate its judicial authority to ultimately resolve the issue and
settle disputes between the parties.”79 Pennsylvania has taken a medial posi-
tion, holding that a court can delegate decision making on temporary, but
not on permanent custody determinations.80 Although these jurisdictions
favor alternative dispute resolution, they have determined that the court™s

70 Id. at 225“226.
71 Wayno v. Wayno, 756 So. 2d 1024, 1025 (Florida 2000).
72 Marchal v. Craig, 681 N. E. 2d 1160, 1162 (Indiana 1997).
73 Lone Wolf v. Lone Wolf, 741 P. 2d 1187, 1190 (Alaska 1987).
74 In re Christopher S., 2002 WL 31033062 (California, September 12, 2002; unpublished).
75 Harvey v. Harvey, 680 N. W. 2d 835 (Michigan Supreme Court 2004).
76 Blackburn v. Mackey, 131 S. W. 3d 392 (Missouri 2004).
77 In re Marriage of Timothy E. Slayton, 103 Cal. Rptr. 2d 545, 549“550 (2001).
78 Nashid v. Andrawis, 847 A. 2d 1908, 1101“1102 (Connecticut 2004).
79 Martin v. Martin, 734 So. 2d 1133, 1136 (1999). See also In the Marriage of Hanks, 10 P. 3d 42,

47 (Kansas 2000), in which the court held that in custody disputes judges can appoint “case
managers” who are not mediators to assist the court; however, such case managers have “no
independent” power to act or bind the parties.
80 Littman v. Van Hoek, 789 A. 2d 280, 281“282 (Pennsylvania 2001).
104 Legal Ethics in Child Custody and Dependency Proceedings

obligation to determine that the agreement is in the children™s best interest
trumps budget reduction.81
Pennsylvania has taken a very different approach, holding that arbitration
awards in custody disputes are not violative of public policy, but that the
arbitration award only binds parties who signed the agreement. In addition,
any custody arbitration award is “subject to the supervisory power of the
court in its parents patriae capacity in a proceeding to determine the best
interests of the child.”82 Further, the court held that an arbitration agreement
between parents does not have res judicata effect upon the child unless the
child was a party to the proceeding and the terms do not “adversely affect
the substantial interest of the child.”83
Other jurisdictions permit binding arbitration in divorces except for issues
involving child custody and visitation.84 Minnesota has one of the most
unusual alternative dispute resolution systems in child custody cases. First,
the parties must engage in mandatory mediation; however, if those sessions
fail to resolve the disputes, the parties must then engage in binding arbitra-
tion. In In re Coughlan85 the court refused to determine what the standard
of court review might be on a binding arbitration custody matter. In con-
trast, in Kniskern v. Kniskern86 a Colorado court determined that, when an
arbitration involves child custody, the court “retains jurisdiction to decide
all issues relating to the children de novo upon the request of either party.”
However, in Kniskern, because the alternative dispute resolution had been
conducted by a “parenting coordinator” rather than a formal arbitrator, the
court held that there was no right to de novo court review.
In a minority of jurisdictions, binding arbitration in custody cases is con-
sistent with public policy as long as the settlement agreement meets statutory
or contractual requirements. An Alaska opinion held that “the superior court
correctly applied a contractual analysis in interpreting the custody agreement
between . . . [the parents]; settlement agreements should be interpreted as
contracts provided they meet minimal contractual requirements.”87 In addi-
tion, most jurisdictions provide that the custody settlement agreement may
not exceed the subject matter limitations of the court hearing.88 In Byers v.


81 L. L. H. v. S. C. H., 2002 WL 1943659, at 3 (Alaska 2002; unpublished).
82 Miller v. Miller, 620 A. 2d 1161, 1165 (Pennsylvania 1993).
83 Id. at 1165, fn. 4. See also Merrill Lynch, Fenner & Smith, Inc. v. Benjamin, 766 N.Y.S. 2d 1

(2003).
84 Cayan v. Cayan, 38 S. W. 3d 161 (2000).
85 In re Coughlan, 2003 WL 22136814 (Minnesota App. 2003).
86 Kniskern v. Kniskern, 80 P. 3d 939, 941 (Colorado 2003).
87 Gaston v. Gaston, 954 P. 2d 572, 574 (Alaska 1998).
88 For instance, in Bauer v. Bauer, 28 S. W. 3d 877, 885“887 (Missouri 2000), the court held

that child custody mediation settlement agreements were limited to custody and visitation
The Ethics of Alternative Dispute Resolution in Child Custody 105

Byers,89 the Michigan court held that the “parties to a divorce may agree to
submit their disputed issues to binding mediation or arbitration . . . including
child custody . . . [and] absent a showing of fraud, duress or an extension of
the mediator™s powers, a court is unable to review a mediator™s decision.”
In effect, the court ceded its historic right to review such decisions. The
Michigan approach to binding agreements is based upon contract theory. As
long as the conditions and terms of the custody settlement are contractually
valid, the agreement is not subject to court attack. Texas takes a similar con-
tractual approach to divorce and custody settlement agreements: “Because a
mediated settlement agreement is enforceable under contract law, the same
procedures used to enforce and enter judgment on other contracts should
apply to mediated settlement agreements” and even if one party repudiates
the contract, the court can enforce the settlement agreement.90
However, the contractual approach raises two critical problems in child
custody cases. First, how does a parent demonstrate fraud or duress if the
settlement takes place in a con¬dential alternative dispute resolution setting?
Because arbitrators and mediators are often declared incompetent to tes-
tify and because few systems provide con¬dentiality exceptions, it is almost
impossible to prove that the settlement agreement was contractually void or
voidable. Second, because much of the duress that takes place during con¬-
dential alternative dispute resolution is caused by the arbitrator or mediator
in an effort to seek a quick resolution, contract principles might not be avail-
able to set aside the settlement agreement. In addition, proving contractual
duress is dif¬cult, and the source of the duress can be either another party, a
mediator, or one of the party™s attorneys.91
For instance, in Vogt v. Vogt,92 a Minnesota child custody dispute in which
there was an allegation of domestic violence and in which the father, but
not the mother, was represented by counsel, the court held that a visitation
settlement agreement was “forced” upon the mother. Although the court


issues and could not decide other marital issues, such as mortgage or medical payments
after separation or divorce. See also California Family Code § 3178(a): “Where mediation is
required to settle a contested issue of custody or visitation, the agreement shall be limited to
the resolution of issues relating to parenting plans, custody, visitation, or a combination of
these issues.”
89 Byers v. Byers, 1996 WL 33348581 (Michigan 1996; unpublished).
90 Davis v. Wickham, 917 S. W. 2d 414, 416 (Texas 1996).
91 For instance, in In re Christopher S., 2002 WL 31033062 (California, September 12, 2002;

unpublished), the court held that the mother in a child dependency case failed to suf¬ciently
“identify any legal duty to reverse a decision already made once a parent suggests the under-
lying agreement may be suspect.” The court refused to set aside the mediated settlement
because the mother merely presented her “unsworn and untested surprise statement” about
the coercion.
92 Vogt v. Vogt, 455 N. W. 2d 471, 474“475 (Minnesota 1990).
106 Legal Ethics in Child Custody and Dependency Proceedings

noted that the mere fact that one party is pro per is not suf¬cient to demon-
strate duress or coercion, in that case the mediator™s actions exceeded the
bounds of neutrality and, in effect, strong-armed an agreement from the
mother. “The traditional duress defense does not account for the role of
the mediator. If the alleged wrongful threat comes from a third-party like a
mediator, traditional contract law provides that the agreement is not void-
able if the other party to the transaction acted in good faith, had no reason
to know of the coercive tactics, and gave value to, or relied materially on, the
transaction.”93
And Peter N. Thompson has described two different ways in which a party™s
counsel may attempt to convince or cajole a client to settle:

The context of a mediation creates an atmosphere where parties may be
vulnerable to coercive pressures, particularly when the party™s attorney
wants the client to settle. Attorneys who cannot convince their clients to
accept a settlement that they believe is reasonable frequently seek out a
mediator to serve as a “reality check” on the client. The attorney and medi-
ator then essentially gang up on the client to “persuade” or “in¬‚uence” the
client to voluntarily accept the settlement.94

In Texas custody settlement agreements are not only binding upon the
parties but they also preclude court review if all statutory requirements are
met. In In the Interest of J.A.W.-N.,95 a Texas court held that because the cus-
tody settlement, which included a visitation schedule, met statutory require-
ments, the trial court was required “to enter judgment.” And in Hirsch v.
Hirsch96 a New York court held that even though arbitration in domestic
disputes did not violate public policy, an agreement requiring the “wife to
withdraw a pending criminal complaint against the husband” violated public
policy because it “deprives a party of a constitutional right to seek redress
or protection in a civil or criminal matter. . . . ” Finally, jurisdictions differ
on which persons must sign custody/visitation settlements. For instance,
in California even though custody mediation agreements must be signed
by all the parties, mediation agreements in child dependency cases need be


93 Peter N. Thompson, Enforcing Rights Generated in Court-Connected Mediation “ The Tension

Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial
Justice, 19 OHIO ST. J. DISP. RESOL. 509, 533 (2004).
94 Id. at 533.
95 In the Interest of J.A.W.-N., 94 S. W. 3d 119, 121 (Texas 2002).
96 Hirsch v. Hirsch, 774 N.Y.S. 2d 48, 49“50 (New York 2004). See also Merrill Lynch, Pierce,

Fenner & Smith, Inc. v. Benjamin, 766 N.Y.S. 2d 1, 44 (2003) [“[I]ssues of attorney disquali¬ca-
tion involve interpretation and application of the Code of Professional Responsibility . . . and
cannot be left to the determination of arbitrators selected by the parties. . . . ”
The Ethics of Alternative Dispute Resolution in Child Custody 107

signed by the parents, not the children who are also parties in those legal
proceedings.97
In those jurisdictions that permit judges to merely incorporate custody
settlement agreements into the court™s order, there is the risk that the set-
tlement will have less legal effect than if the same terms had been reached
through an original court hearing. In In the Matter of D. Keith Jennings,98 a
Kansas court held that a “mediated custody agreement incorporated into a
decree of divorce or other court order does not have the same effect as a court
order that is issued after a hearing where evidence is presented and the trial
court makes speci¬c ¬ndings of fact.” The Kansas court held that mediated
settlement terms, unlike adjudicated custody issues, do not require the mov-
ing party to demonstrate “a material change of circumstances.” Therefore,
at least under Kansas law, mediated child custody agreements are modi¬ed
more easily than those reached through court judgments. Depending upon
which party is represented, this procedural distinction could be disposi-
tive in determining which mechanism the client should use in a particular
case.
Unlike the protean, ¬‚exible genesis of custody and dependency alterna-
tive dispute resolution in which parties had latitude over the procedures and
content of settlement proceedings, the previous discussion demonstrates
that those systems have become procedurally narrowed and courts™ and
parties™ discretion and freedom to settle these cases have been pared back
signi¬cantly.


B. The Duty of Candor: Good Faith, Puf¬ng, and Lies
All jurisdictions prescribe an attorney™s duty of candor. Most rules apply
in court-litigated cases and are based, in part, on an attorney™s role as an
of¬cer of the court.99 For instance, California requires attorneys to represent
clients “consistent with the truth, and never to seek to mislead the judge or
any judicial of¬cer by an arti¬ce or false statement of fact or law.”100 The
American Bar Association de¬nes “candor” as not knowingly making “a
false statement of material fact or law to a tribunal . . . [or] failure to disclose

97 See Los Angeles County Superior Court Rule 17.22(b)(1): “If a settlement is reached . . . counsel

will prepare a written case plan document, signed by the parties, for submission to the
judicial of¬cer for review and approval.” And California Welfare and Dependency Code
§ 317.6 provides that “[e]ach minor who is the subject of a dependency proceeding is a
party to that proceedings.”
98 In the Matter of D. Keith Jennings, 50 P. 3d 506, 506“508 (Kansas 2002).
99 See Preamble: A Lawyer™s Responsibilities, Rule 1 (American Bar Association Model Rules)

stating that a lawyer is “an of¬cer of the legal system. . . . ”
100 California Business and Professions Code § 6068(d).
108 Legal Ethics in Child Custody and Dependency Proceedings

a material fact to a tribunal when disclosure is necessary to avoid assisting
a criminal or fraudulent act by the client.”101 Therefore, it is clear that the
duty of candor applies no matter the procedural status of the case heard
by a legal tribunal. However, “nowhere do they [the ABA rules] de¬ne ˜tri-
bunal.™”102 And what if the of¬cial hearing a custody or dependency settle-
ment is not a judge, but rather someone appointed to hear the alternative
dispute resolution? In some jurisdictions, like Florida, the mediator is an
equivalent of¬cial judicial of¬cer: “[the mediator] is, for all intent[s] and
purposes, an agent of the court carrying out an of¬cial court-ordered func-
tion.”103 Because such mediators are court agents, the duty of candor toward
judges is arguably applicable. However, what if the judge in a child custody
or dependency case refers the parties to some form of family reconciliation
dispute resolution? For instance, in Kansas the court can refer parties to a
“case manager” who is “not a mediator” and who, unlike the mediator, has
the discretion “to take independent action and make recommendations to
the court. . . . ” One could argue that without some general duty of candor,
the rules applicable before the tribunal are not in force.
But most jurisdictions also have promulgated rules of candor applica-
ble to any person with whom an attorney has contact while representing the
client. For instance, American Bar Association Rule 4.1, “Truthfulness in State-
ments to Others” provides that an attorney “[i]n the course of representing
a client . . . shall not knowingly: (a) make a false statement of material fact or
law to a third person; or (b) fail to disclose a material fact to a third person
when disclosure is necessary to avoid assisting a criminal or fraudulent act by
a client, unless disclosure is prohibited by Rule 1.6 [duty of con¬dentiality].”
However, Rule 4.1, Comment 2 indicates that this duty of candor refers only to
“statements of fact” and that often in negotiation “certain types of statements
ordinarily are not taken as statements of material fact.”104 Rule 4.1 delineates
several examples in alternative dispute resolution in which statements do not
comprise “material facts,” such as “puf¬ng”105 and in “[e]stimates of price

101 American Bar Association Model Rule 3.3 (a)(1) and (2).
102 John W. Cooley, De¬ning the Ethical Limits of Acceptable Deception in Mediation, 4 PEPP.
DISP. RESOL. L. J. 263, 271.
103 Vitakis-Valcine, 793 So. 2d 1094, 1099 (Florida 2001).
104 “An attorney cannot encourage or suggest to a client that he or she sign disclosure declarations

that the attorney knows are not accurate, nor can the attorney knowingly allow a client to
sign a waiver indicating that all information has been disclosed, knowing that it has not.
An attorney who attempts to bene¬t his client through the use of perjured testimony may
be subject to criminal prosecution, as well as severe disciplinary action.” Stephen James
Wagner, The Ethics of Family Law Disclosure: Have You Suborned Perjury Lately?, 8 CAL. FAM.
L. MONTHLY 197, 198 (August 2004).
105 The American Bar Association duties of candor “contemplate activities such as puf¬ng,

which in the broadest sense are untruthful.” James J. White, Machiavelli and the Bar: Ethical
The Ethics of Alternative Dispute Resolution in Child Custody 109

or value.”106 Thus, the scope of an attorney™s duty of candor is most ambigu-
ous when the attorney is involved in a noncourt tribunal with arbitrators,
mediators, and parties in an alternative dispute resolution process.
Many experts have argued that, short of committing fraud, there is no
duty of candor in nontribunal proceedings.107 In fact, many have argued
that deception is the essence of successful mediation and negotiation:

[E]ach party in a mediation is an actual or potential victim of constant
deception regarding con¬dential information “ granted, agreed deception “
but nonetheless deception. This is the central paradox of the caucused
mediation process. The parties, and indeed even the mediator, agree to be
deceived as a condition of participating in it in order to ¬nd a solution that
parties will ¬nd “valid” for their purposes. . . . These competitive bargain-
ing strategies and tactics are layered and interlaced with the mediator™s own
strategies and tactics to get the best resolution possible for the parties “
or at least a resolution that they can accept. . . . [This]creates an environ-
ment rich in gamesmanship and intrigue, naturally conducive to the use
of deceptive behaviors by the parties and their counsel, and yes, even the
mediators.108

Neither the American Bar Association109 nor the majority of states require
candor and/or good faith in mediation. For instance, the American Bar Asso-
ciation Standards of Practice for Lawyers Represeinting Child Welfare Agencies
require the agency™s lawyer to “ensure accurate testimony and correct any
misstatements in the courtroom,” but no such duty of candor is mandated
in the Standards™ de¬nition of the attorney™s role in alternative dispute resolu-
tion.110 However, some states have begun to promulgate such requirements.
For instance, Indiana, Ohio, and Oklahoma require good faith in mediation,
“stating that ˜parties and their representatives are required to mediate in good


Limitations on Lying in Negotiation, in WHAT™S FAIR: ETHICS IN NEGOTIATION 93 (Carrie
Menkel-Meadow & Michael Wheeler, eds., 2001).
106 American Bar Association section 2.3 Guidelines “which addresses honesty and fair-dealing,

allows an attorney to escape the adversarial ethic in settlement negotiations.” Brian C. Hauss-
mann, supra note 22, at 1218, 1237.
107 “[W]ith respect of negotiation, the present ethical norms for lawyers do little more than

proscribe fraud in negotiation “ or, at most, they proscribe only very serious, harmful
misrepresentations of material fact made through a lawyer™s false verbal or written statement,
af¬rmation, or silence.” John W. Cooley, supra note 102, at 269“270.
108 Id. at 265.
109 Under the ABA rules of professional responsibility, “mediators “ lawyers and nonlawyers “

currently have no speci¬c formal guidance regarding how truthful they must be in conducting
mediation.” Id. at 272.
110 Standards of Practice for Lawyers Representing Child Welfare Agencies, Standard C-1(3)and

(10) (American Bar Association, August 2004).
110 Legal Ethics in Child Custody and Dependency Proceedings

faith™, but are not compelled to reach an agreement.”111 Critics of the adver-
sarial mode of litigation have argued that the duty of candor should apply
to an even greater extent in alternative dispute resolution where bilateral
zealous advocacy is less necessary:

[O]ne could make a persuasive argument that a heightened standard of
truthfulness by advocates in mediation should apply because of the “decep-
tion synergy” syndrome resulting from a third-party neutral™s involvement.
We know from practical experience that the accuracy of communications
deteriorates on successive transmissions between and among individuals
. . . [especially because] mediators tend to embellish information, translate
it, and sometimes distort it to meet the momentary needs of their efforts
to achieve a settlement.112

However, the Uniform Mediation Act113 and many critics of expanding
candor and good faith in alternative dispute resolution have identi¬ed a
number of reasons why the current rules are a better policy. First, they argue,
no jurisdiction has been able to satisfactorily de¬ne “good faith” to both
provide parties and attorneys notice and to give review courts guidance
in implementation. So far, most good faith de¬nitions are too subjective;
rely upon a person™s mental state, which is dif¬cult to prove; fail “to pro-
vide objective grounds for sanctions, and do not give the participants in
mandatory-mediation reliable guidelines as to what is appropriate behav-
ior and what is not.”114 In addition, some argue that a formal good faith
requirement will make mandatory mediation more formal, reduce parties™
willingness to participate because sanctions based upon vague standards are
a possibility, reduce the mediator™s neutrality because he or she will have
to judge the quality of parties™ participation, and will weaken con¬dential-
ity rules because the facts and circumstances surrounding the mediation
must be disclosed to support a court™s ¬nding of bad faith without violating
due process.115 “[C]on¬dentiality and secrecy, resulting in overlapping priv-
ilege rules, makes it dif¬cult for parties to litigate claims of unfairness in the

111 Robert A. Creo, supra note 16, at 1017, 1063. See also Montgomery Co., Ohio, C.P.R. 2.39
(Anderson 2002); Oklahoma Stat. tit. 12, §1824(3); Indiana Code Ann. Tit. 34, R. 8.5.
112 John W. Cooley, supra note 102, at 270. “The absence of a positive duty to be truthful or

candid or to tell an opposing lawyer about a case or fact helpful to that lawyer™s matter is
based on the principle that each client is entitled only to one zealous representative “ his or
her own lawyer.” Carrie Menkel-Meadows, Ethics, Morality and Professional Responsibility in
Negotiation, in MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT
LITIGATION 119, 129 (Jay Folberg & Alison Taylor, eds., 1984).
113 Sarah R. Cole, Nancy Rogers, et al., supra note 6, at 7“7 (2003 Cumulative Supplement).
114 Dr. Iur Ulrich Boettger, Ef¬ciency Versus Party Empowerment “ Against a Good Faith Require-

ment in Mandatory Mediation, 23 REV. LITIG. 1, 20 (2004).
115 Id. at 24“25, 34“35.
The Ethics of Alternative Dispute Resolution in Child Custody 111

mediation process.”116 Many jurisdictions prohibit the introduction of con¬-
dential mediation data to demonstrate bad faith, thus rendering all sanctions
impossible, except possibly for failure to appear at the mediation.117
Certain circumstances enhance the potential for deception and bad faith:
(1) an “asymmetry” of information access among parties; (2) contexts in
which veri¬cation is dif¬cult; (3) the dif¬culty of proving the intention to
deceive; (4) inadequate or unequal assets by the parties to prevent deception
or overreaching; (5) “ex post facto” remedies are untimely or too expensive;
(6) information about the reputation of the parties or mediator is unavailable;
and (7) one party has little to lose and much to gain through deception.118 In
addition, a number of techniques that advocates have termed “deceptive” or
“bad faith” alternative dispute resolution tactics are endemic to mediation:
(1) last-minute delays, (2) sending representatives without the authority to
settle the case, (3) repudiating agreed-upon settlement conditions, (4) inter-
jecting new demands, (5) unwillingness to provide any information even if
not con¬dential, and (6) refusal to sign the settlement agreement.119 It is
important that attorneys representing parties in child custody and depen-
dency proceedings recognize these tactics, even if no action for bad faith is
available, so that the tactics can be openly discussed with the mediator at the
earliest possible moment. In those jurisdictions that permit the mediator to
issue recommendations to the court, discussing bad faith during the medi-
ation may help impeach the credibility of an opponent and may color the
mediator™s statement of facts even if the mediator has no authority to lodge
a complaint based upon the bad faith.

V. THE SCOPE OF ALTERNATIVE DISPUTE RESOLUTION
CONFIDENTIALITY

The most complex substantive and strategic topic in alternative dispute res-
olution is the scope of con¬dentiality inherent in those voluntary and/or
required proceedings. “Presently, there are over 250 mediation con¬dential-
ity statutes. Of these statutes, about half contain con¬dentiality provisions

116 Peter N. Thompson, supra note 93, at 514“515.
117 Perhaps the most famous and stringent court to reject the use of con¬dential mediation
information is the California Supreme Court, which stated that con¬dentiality is the lynchpin
of mediation. Foxgate Homeowners™ Association, Inc. v. Bramalea California, Inc., 108 Cal. Rptr.
2d 642 (2001). Alaska has held that a party at least has a good faith obligation to attend a
mediation even though the extent of participation is a matter of trial tactics and discretion.
Mackey v. Mackey, 2001 WL 111267 (Alaska Civil Appeal 2001).
118 J. Gregory Dees, Promoting Honesty in Negotiation: An Exercise in Practical Ethics, in WHAT™S

FAIR: ETHICS IN NEGOTIATION 124 (Carrie Mendel-Meadow & Michael Wheeler, eds.,
2001).
119 Dr. Iur Boetger, supra note 113, at 18“20.
112 Legal Ethics in Child Custody and Dependency Proceedings

that are of general application, while the remaining statutes address spe-
ci¬c subjects. . . . Due to the different approaches, lawyers and parties can
encounter surprise and uncertainty if the dispute is governed by the law of
a different state than where the mediation is conducted.”120 Because most
courts and commentators agree that “[o]ne of the fundamental axioms of
mediation is the importance of con¬dentiality,” it is not surprising that
differences among jurisdictions are re¬‚ected in the scope of con¬dential-
ity provided in alternative dispute resolution.121 Congress, state legisla-
tors, and federal and state jurists have all concluded that con¬dentiality
is central to providing an incentive for party participation and for ensur-
ing mediator neutrality.122 Indiana considers mediation con¬dentiality such
an important public policy that not even the parties can agree to waive
it.123 However, jurisdictions disagree regarding the appropriate degree of
con¬dentiality in relation to other important public policies, such as child
abuse allegations and confrontation rights. In addition, attorneys must not
confuse evidentiary rules, which prohibit the introduction of statements
made during compromise negotiations, with privileges, “which usually pro-
vide protection against any disclosure rather than merely protection against
admission into evidence at a court hearing. Thus, most mediation privi-
leges govern use of the mediation information in all forums, not just those
judicial hearings governed by the rules of evidence, as with evidentiary
exclusions.”124
Professor Creo has argued that mediation con¬dentiality should be con-
trolled by rules analagous to Federal Rules of Evidence, Rule 408, which pro-
hibits the use of settlement statements, rather than basing con¬dentiality
rules on analogies to the attorney-client privilege, which is subject to waiver
and exceptions.125 But even the evidentiary exclusion of statements from
compromise negotiations is not fully protected because “administrative and


120 Mindy D. Rufenacht, The Concern over Con¬dentiality in Mediation “ An In-Depth Look at
Protection Provided by the Proposed Uniform Mediation Act, 2000 J. DISP. RESOL. 113, 114
(2000).
121 Ellen E. Deason, Enforcing Mediated Settlement Agreements: Contract Law Collides with Con-

¬dentiality, 35 U. CAL. DAVIS L. REV. 33, 35 (2001).
122 Id. at 35. “In the Alternative Dispute Resolution Act of 1998 [28 U.S.C. § 652(d)(1998)],

Congress directed all district courts to adopt court-sponsored ADR programs and singled
out con¬dentiality protection as a required element in the programs.” Id. at 40.
123 Marchal v. Craig, 681 N. E. 2d 1160, 1162 (Indiana 1997).
124 Sarah R. Cole, supra note 6, at 9“10. See, e.g., California Evidence Code § 1119 that “goes

beyond an evidentiary privilege, like the attorney-client privilege, by barring communica-
tions made in mediation from being disclosed in discovery or trial proceedings.” John A.
Toker, CALIFORNIA ARBITRATION AND MEDIATION PRACTICE GUIDE: COURT-ORDERED ADR
457 (2003).
125 Robert A. Creo, supra note 16, at 1033.
The Ethics of Alternative Dispute Resolution in Child Custody 113

legislative of¬cers are not required to follow the rules of evidence.”126 It is
important to remember that the mediation may involve individuals who fol-
low different ethical codes regarding disclosure of con¬dential information.
Therefore, if mediation involves attorneys, mediators, social workers, and/or
therapists, parties™ attorneys must be aware of the limits and requirements
of disclosure by each of those separate professional canons of ethics.
The question concerning the proper scope of mediation con¬dentiality
must focus both on internal case uses and on uses of that data in other pro-
ceedings and contexts. Most jurisdictions provide that the mediator may not
disclose any of the parties™ statements made during the mediation except
for admissions or threats of child abuse.127 However, even the child abuse
reporting exception is subject to variations among and within jurisdictions.
For instance, in California each county determines the scope of mediation
con¬dentiality disclosures. Some counties use the American Bar Association
approach of permitting disclosure only if it is reasonably necessary to pre-
vent death or serious bodily injury.128 Other jurisdictions permit mandated
reporters to report any mediation statements “that could form the basis of a
new [child abuse] petition” or which give rise to a “[r]easonable suspicion of
child abuse not previously reported.”129 In contrast, the Uniform Mediation
Act suggests a much narrower reporting exception only for future crimes and

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