Estimates of between 70-90% of divorces in which where at
least one party is unrepresented are not uncommon. Legal aid for
family law matters that do not involve family violence may be on
the verge of extinction, and some people simply cannot afford legal
representation. But there are many “middle class divorces” where
parties choose to go it alone, getting information from self-help
centers, the Internet and elsewhere. The impact on FDR processes
can be significant. While it was at one time common for lawyers
to shepherd parents through the legal and mediation process, and
for mediators to ask clients to consult with their attorneys about
potential outcomes or settlement opportunities, today the FDR
neutral may be the only professional involved who can offer expertise or information that is otherwise not readily available to the
client. With many left to fend for themselves in a legal system that
is beyond their understanding or expertise, the FDR neutral’s role
(and for that matter, the role of the family court judge and the family
lawyer) will likely be seen in a different light in the future.
Availability of court-connected services.
Funding for public sector programs has often been a challenge,
but under the current U.S. political regime (both Democratic and
Republican) budget cuts that were once unimaginable have become
commonplace. Some programs have been eviscerated, leaving
months-long waiting times, overburdened court staff and severe
constraints on services and service providers. The impact in many
jurisdictions has been increased caseload, staff burnout, and in
the courts a shift from processes that focus on party self-determination to recommendation-based settlement. While this trend
is by no means universal, these stories are not unusual. Where
this will lead is anyone’s guess, but over the last five years in my
home state of Wisconsin, political leadership has altered state laws
to systematically privatize and/or dismantle government programs
that support education, natural resources, business development,
citizens with disabilities, and others previously thought to be safe
from the chopping block. With many states struggling to balance
their budgets, courts are by no means safe, and prospects for badly
needed increased government support appears dim.
Differentiated case management.
Over the last decade courts have increasingly implemented early
screening and differentiated case management systems in an effort
to identify the most effective use of services. This approach rejects
one-size-fits-all mandatory mediation for all litigants, in favor of
a more individualized approach to FDR, and is consistent with the
notion of prioritizing the needs of family members over a particular
process. Given the need for budget savings and greater efficiency in
the courts, this trend is likely to continue.
Intensive Family Interventions
An increase in complex family conflicts has been accompanied by
the proliferation of intensive interventions designed to address cases
involving challenges such as high conflict, estrangement, alien-
ation and intimate partner violence. These programs may involve
some or all family members, they may take place over a weekend
or be multiple days in length in a residential setting, and they may
be psycho-educational or therapeutic in nature. Programs are often
expensive, although some offer scholarships. Because these cases
use such extensive court resources, it is not unreasonable to expect
expansion of these services, and perhaps limited government sup-
port, even with the diminishing public sector funding noted above.
It is impossible to discuss the future of FDR without considering
the growth of online dispute resolution (ODR) and what seems to
be an inevitable FDR/ODR nexus. While FDR has been profoundly
influenced by technology, the fit is not a slam dunk by any means
because the general gestalt of ODR simply does not appear to
be a natural for the human interactions that are so critical in FDR.
Technology already provides many tools that can prevent conflict or support its resolution. For example, there is a computer
program that reviews emails between separated parents and
highlights potentially inflammatory langue prior to sending them.
Cloud-based case management software, online parent education
programs and mediation rooms, and programs that facilitate negotiations have all entered the market in recent years. Perhaps most
impressive, a seemingly comprehensive program from the Netherlands has been developed that helps parents assess their specific
needs (including whether they are ready to divorce) and guides
them through processes, professionals and resources.
ODR is in its infancy and will only become more sophisticated
as time passes. However, human interactions will continue to be
critical in FDR, and technology will not able to manage the relational issues alone. It will thus remain a tool of FDR practitioners
rather than putting them entirely out of work.
CONNECTING THE DOTS FOR THE FUTURE
Given the factors examined above, I offer the following possibility
as one way the dots might connect twenty years from now:
• A greatly expanded and widely used continuum of FDR services will be developed. Dispute resolution processes
will be accurately defined and consistently implemented.
Processes will range from highly facilitative and/or
therapeutic on one end to evaluative and advisory on the
other. The continuum will include educational programs,
facilitative or transformative mediation, parenting
coordination, early neutral evaluation, recommending
processes and intensive therapeutic interventions.
• Advances in technology will allow for a parental self-assessment in which parents answer a series
of questions and receive feedback on the benefits
and costs to them of participating in specific FDR
processes. The program will take into account the
information provided by both parents prior to making a
recommendation and match their needs, interests and
concerns. At the conclusion of the assessment, there