Joint Custody as an Option for Mediation

Introduction

In the spring of 2007, program mediators were told that judges and referees2 in Kings County (Brooklyn) Family Court would no longer accept joint custody language in mediated Agreements. This was not mandated in other boroughs. This article gives some background of family court and mediation, examines the implications of this decision and suggests options that could be explored. The first section will provide a background on the structure and issues surrounding the New York City Family Courts. The second section is an overview of mediation and how mediation has been used in custody and visitation cases. The third section describes how custody determinations have been made, and the last section describes the tension between the court’s need for efficiency and the concept of self-determination, which is central to the mediation process. Finally, I offer suggestions for the court mediation program to address this intrinsic tension. Woven throughout the article is a case study, which illuminates the mediation process.

I. The New York City Family Courts

A. Overview

As part of the Unified Court System, each county in New York State has its own family court.5 New York City (“NYC”) is made up of five counties (or boroughs). While some programs and administrative decisions affect the New York City Family Court System as a whole, each courthouse retains its own culture. Family Courts have jurisdiction over cases involving child support, custody, visitation, abuse or neglect, foster care, terminations of parental rights, family offense (orders of protection), parent-teen (Persons in Need of Supervision, or PINS) and juvenile delinquency.6 Divorce, separation and annulments of marriages are heard in New York State Supreme Court, which is also a trial level court.7 Thus, parents who are unmarried must litigate disputes regarding their children in Family Court, while married parents must litigate divorces (and disputes regarding their children) in Supreme Court.

Family Court and Supreme Court are on the same judicial level. Cases decided in either Court can be appealed to the Appellate [p. 131] Division.8 However, there is a huge discrepancy between the two courts. Family Court is a poor person’s court.9 Most Supreme Court litigants tend to be middle class and a higher percentage of them are white, whereas Family Court litigants are overwhelmingly people of color.10 Nearly all litigants in Supreme Court have private attorneys, while in Family Court most litigants appear pro se or with court appointed attorneys.11 Family Courts are terribly under-funded, thus Family Court judges hear many more cases than do Supreme Court judges.12 Although filings have increased steadily,13 the number of Family Court judges in New York City (47) has not changed since 1991.14

Because the Family Court does not have jurisdiction over matrimonial matters in New York State, parties who come to Family Court for custody and visitation disputes are, by definition, unmarried.15 Some are former spouses seeking to modify a prior child [p. 132] custody order, which may have been created in Supreme Court when they divorced. Most, however, had never been married, or at least not to each other. Occasionally, a custody case might involve a grandmother and a parent, or be between same-sex couples, but most often the litigants are a man and a woman who are the legal parents of the child. I have mediated cases where both parents were in their teens and still lived with their mothers. I have mediated other cases where one party was still married to someone else, yet had children with the other party. In some cases, the parents were divorced and had worked out an arrangement, but needed a modification of the divorce order to adjust child support arrangements.16 In my experience, parents in the Court Mediation Program have been diverse in educational background, income level, age, race and ethnicity.

The conditions in Family Court are horrendous.17 I have always felt that working there was to be on the front lines of crisis with residents of New York’s poorest communities. This is reflected in the physical overcrowding, how litigants are treated, and in the low expectations of professionals toward its litigants.18

It is well documented that most people who appear in New [p. 133] York City’s Family Courts are poor people of color.19 According to the New York State Unified Court System’s Office of the Deputy Chief Administrative Judge for Justice Initiatives (DCAJ-JI), 84% of self-represented litigants in New York Family and Housing Courts are people of color, and 83% reported a household income of under $30,000 and 57% reported household income of under $20,000.20 Statistics of racial disparities are well documented for the foster care system, and the racial make-up of other types of cases heard in Family Court, including custody and visitation cases, seems similar. A study done in 1998 showed that:

Professor Martin Guggenheim, under whom I worked at the New York University School of Law’s Family Defense Clinic, has described it this way:

Assemblyman Roger Green, addressing the New York State Assembly, proposed that the over-representation of African-American children in foster care was due to biases that occur at the point caseworkers first begin to investigate, and that racism and class bias continue to influence perceptions, expectations, and service delivery as children wend their ways through the child welfare system.23

New York City Family Court calendars are unbelievably congested. Nearly all litigants are told to come to court when the court opens at 9:30 A.M. They are not given specific appointments. It is not unusual for an attorney to appear on ten cases a day divided among different courtrooms on different floors of the courthouse. Nor is it unusual for judges to hear over 80 cases each day (sometimes just for administrative matters, sometimes for actual hearings).24 With calendars like that, judges must hear whichever case is ready, meaning having all of the litigants, attorneys and witnesses present and prepared to appear.25 As a result, litigants often must wait hours for their case to be heard, even if their case is only on the calendar for return of service–a chaotic system, at best.

Although Queens and Brooklyn Family Courts have moved into new buildings in the past few years,26 both the Bronx and Manhattan courthouses are dilapidated, filthy and depressing. In the Bronx Family Court, for instance, litigants must often wait in line for hours to get into the building because the buildings’ elevators [p. 136] are routinely broken or being repaired.27 Often, only one elevator is in use to carry roughly 3,000 people a day up to the court, where the courtrooms are on the 6th, 7th and 8th floors. If litigants are not present, their cases cannot be called. As a result, judges must adjourn cases, often for months at a time, delaying justice and litigants’ day in court.28 This all adds up to give the family courthouses the milieu of a welfare office rather than a representation of justice.

Once inside the courtroom, cases are often rushed or adjourned, if they are heard at all.29 Cases may be adjourned for weeks or even months at a time, and litigants may be told to come back again and again. This is frustrating for those who have to work or have child-care responsibilities because they have to take a whole day off each time they must appear in court, and/or arrange for others to take care of their children. Parents have told me that they have used all of their vacation time for the year waiting in Family Court. One parent told me that she lost her job because of required Family Court appearances. What might have started out seeming like a simple matter may take months or even years to complete.

Most Family Court litigants appear either pro se or by court-appointed (“18-B”) attorneys.30 Although the U.S. Supreme Court declined to rule that parents have a constitutional right to a court-appointed attorney on non-criminal matters,31 the New York State legislature has granted parents the right to such attorneys in custody and visitation, neglect and abuse matters, as well as termination of parental rights.32 Parents in child custody and visitation [p. 137] cases may be appointed an 18-B attorney if they are indigent,33 which is defined as over 125% of the poverty line.34 Most working people are not entitled to court-appointed assistance. Although some unions offer Legal Assistance Programs, free legal services for custody and visitation cases are virtually non-existent for others.35 Thus, a large income gap separates people who are eligible for a free, court-appointed attorney, and those who can afford to pay normal attorney’s fees, which, at $250-$500 per hour, could add up to $5,000 or $10,000 per case.

To initiate a case, a person files a petition in the court’s petition room, with the assistance of a clerk.36 The clerk asks the petitioner questions to obtain a brief summary of the case, and then writes up the petition on his or her behalf.37 The petitioner is then sent to an intake “part” (or courtroom) and waits to go before a judge who reviews the petition, decides whether to appoint an 18-B attorney or law guardian, decides on other preliminary matters, or adjourns the case for the petitioner to serve the petition on the opposing party. The judge may refer the case to the mediation program at this point. Judges and referees who are more open to mediation refer more often. Some screen out cases for domestic violence; others refer more and let the mediation program screen out cases that might be inappropriate.

Litigated custody cases can be frustrating for judges, who are asked to determine “the best interests of the child,” in a dispute between two fit parents. “Best interest” factors include maintaining physical, financial and emotional stability in the child’s life; the [p. 138] quality of the home environment; the child’s wishes; each parent’s past performance; the relative fitness and ability of each parent to guide and provide for the child’s intellectual and emotional development; and the affect the award of custody to one parent would have on the relationship with the other.38 Even where both parents are fit, the proceedings can be acrimonious and may lead to hours of court time tied up in mudslinging, or a series of accusations, founded or not, between angry parents.

In addition to the parents, children also have a voice in the proceedings. Children are assigned law guardians, who interview them and represent their interests in court.39 Law guardians for young children (up to the age of about nine or ten, depending on their level of maturity) may substitute their judgment as to what they believe should happen.40 Law guardians for older children must represent the children’s interests directly.41

The Family Court mediation program was started in response to the chaotic nature of family court. The program is intended to better serve parents seeking custody and visitation by offering an alternative.

II. Mediation

Mediation is one form of Alternative Dispute Resolution42 and has been used by families for many years. It is particularly well-established in California courts, where couples can attempt to mediate before trying their cases.43

[p. 140] Parties meet directly with a neutral mediator, who guides them through a dispute resolution. The mediator helps them explore the issues, identifying each party’s interests and the values underlying those interests, brainstorming options and coming to a mutually agreeable solution.44 Once an agreement is reached, the mediator writes down the terms of the agreement. If the mediation is connected with a court program, the written agreement, once approved by the parties, is submitted to the court, which then so-orders it. At that point it becomes an enforceable court order.

The goal of mediation is not simply coming to an agreement. Agreements could be reached through strong-arming, manipulating, or coercion. These would not be considered mediated agreements. The goals of mediation lie in its underlying values of self-determination, voluntariness, impartiality, confidentiality, and safety.45 The process is as important as the ends, or as Marshall McLuhan once famously said, “[t]he medium is the message.”46

Mediation is particularly well-suited to parties who have an ongoing relationship, such as family members. While the litigation process often exacerbates acrimony between parties, mediation seeks to assist parties to work together toward a mutually agreeable result.47 That experience of working together provides a model for future conflicts that may arise, thus giving parties the example and tools they can draw upon under new circumstances. As a committee of experienced family law mediators wrote, “family mediation is a valuable option for many families because it can increase the self-determination of participants and their ability to communicate; promote the best interests of the children; and reduce the economic and emotional costs associated with the resolution of family disputes.”48

[p. 141] The concept of self-determination is one of the cornerstones of mediation. It is the first standard listed in the American Bar Association’s (ABA) Standards of Mediation, which states:

Members of the ABA, the Association of Family and Conciliatory Courts, and the National Council of Dispute Resolution Organizations recently created another set of Model Standards of Practice for Family and Divorce Mediators.50 It, too, considers self-determination to be the first standard that mediators should follow.51 It states, “[a] family mediator shall recognize that mediation is based on the principle of self-determination by the participants [,]” self-determination being “the fundamental principle of family mediation” since “[t]he mediation process relies upon the ability of participants to make their own voluntary and informed decisions.”52

A. The Family Court Mediation Program

The New York City Family Court Mediation Program (“the Program”) was established in March 2005 by the New York City Family Courts in collaboration with the Office of Court Administration Office of Alternative Dispute Resolution Programs.53 They selected Community Mediation Services (CMS), a non-profit community dispute resolution center based in Jamaica, Queens, to [p. 142] provide court-based mediation services for all five boroughs.54 The Program falls under the direction of the Citywide Alternative Dispute Resolution Coordinator, as well as CMS staff.

Judges and referees refer cases to the Program, which maintains offices in each of the five boroughs. The parties are then interviewed by the Program staff who screen for domestic violence, unwillingness to mediate, and other circumstances that would make them inappropriate for mediation.55 The Program maintains a roster of certified mediators, who are assigned cases based upon availability and interest.

Mediators must apply and be interviewed by CMS staff to be accepted into the Program. Although there are no formal educational requirements, most are college graduates.56 It is not necessary to have a law degree to mediate or to draft agreements, although CMS staff must approve all agreements. Mediators have to go through a twelve-hour specialized custody and visitation training as well as the basic thirty-hour mediation training certified by the Office of Court Administration, both offered through CMS.57 They begin a thirteen-week apprenticeship period in which they first observe, then co-mediate, and then are observed by experienced mediators.58

CMS trains its students in “values-centered mediation.” Fundamental to this approach is the concept that “people can gain meaning and value from conflict.”59 This stems from the philosophy of psychiatrist and holocaust survivor Dr. Viktor Frankl, who wrote in his most famous book, Man’s Search for Meaning, “we can discover [the] meaning of life in three different ways: (1) by creating a work or doing a deed; (2) by experiencing something or encountering someone; and (3) by the attitude we take toward unavoidable suffering.”60

Mediation gives parties the opportunity and the skills needed to work through conflict to find meaning by examining their own [p. 143] core values and those of the person with whom they are mediating. The attitude they take toward conflict (which has often become for them a source of “unavoidable suffering”) certainly affects their progress in the mediation process. Conflict is transformed from being a roadblock to a springboard for deep communication. This approach is especially well-suited for separated parents, who often bring their disappointment and mistrust of each other to the table ahead of their love for their shared child.

In a typical Family Court mediation, the parties meet with the mediator for up to three or four sessions, each lasting two hours. Because the process is voluntary, parties may discontinue their participation at any time. If they continue, they go through the stages of mediation: identifying issues, identifying underlying values, developing options, and finding areas of agreement.61

Once the parties come to an agreement, the mediator takes the regular steps of drafting a proposed judicial order. The parties review it, sign the final draft, and it is submitted to the court for modification or approval. If the judge approves the agreement, s/he signs (“so orders”) it, and it then becomes enforceable in court.

Because a judge must review the agreements, the Program must try to ensure that the agreements it presents are acceptable to the court. A judge generally wants to see that the parties intend to abide by the mediated agreement. For this reason, parties should be prepared to defend their agreement to the judge. Parties who appear to disagree about or contest the terms of the mediated agreement when they go before the judge for approval run the risk of having their agreement rejected.62 If this were to happen, the parties would be subject to the regular litigation process, where the judge would hold a hearing, giving parties an opportunity to be heard and would make his/her own binding determination.

There is an inherent tension between mediation and the family court system. Although self-determination is a goal of mediation, it is not a goal of the court system. Theoretically, it is not the mediator’s job to determine what can or cannot be written into an agreement. Parties can be extremely creative in preparing their agreements and shape them according to the needs of their particular families. At the same time, however, the mediator must be mindful of the law, and of what would be acceptable to the Court. [p. 144] The mediator must do reality testing with each party to help the parties decide whether each part of the agreement will really be viable.

For instance, in one case I mediated, the father agreed to pick the child up from the mother’s home every Saturday at 11:30 A.M. However, upon further questioning, it turned out his work schedule made it such that this was impossible, and he was actually relying upon his younger sister to pick up the child. It wasn’t until we brought the sister into the mediation process and got her agreement to be involved every week that the parties came to a resolution.

In addition, since Family Court is so overwhelmingly crowded, there is an exigent need for judicial efficiency. Judges will approve only those agreements that will stand the test of time.

B. The Child’s Voice

Neither children nor their Law Guardians participate in the mediation process, so they do not have a direct voice in creating an agreement before it goes to court. Once an agreement is presented to the court the Law Guardian receives a copy and either approves it, suggests changes, or challenges it. At that point the process may be largely pro forma. In one case I mediated, the parents decided that the teenaged children would be split up–the girl would live with their mother, the boy would live with the father. The parents were in complete agreement, but I had no idea how the children felt, nor was I allowed to check with their Law Guardian before I wrote up the agreement. It seems to me that, at least in some cases, the Law Guardian should participate in the creation or drafting of the parents’ agreement.

In the case of little children, it will necessarily be the adults who make the decision. A good reason not to include children in the process is that it could be harmful if they felt that they had to choose between their parents.63 Another reason given is that one of the purposes of mediation is to help parents communicate better about their children with each other and to carry those skills outside of the mediation process. Parents often have conversations [p. 145] about their children that don’t include the children. So mediation is an extension of that kind of conversation.

However, the courts obviously believe the child’s voice is important because children are assigned Law Guardians to represent their interests in custody and visitation proceedings. One of the goals of custody and visitation mediation is to focus the parents more on the children and less on their own interests.64 It takes a skilled mediator to keep the child’s presence in the mediation room without direct representation.

III. Different Types Of Custody

Custody arrangements break down into two types–physical and legal.65 Physical custody refers to where the child lives and how much time she spends with each parent.66 The parent with physical custody at any given moment makes immediate decisions, such as the child’s bedtime, what the child will eat and whether or not the child can play with friends.67 The parent who does not have physical custody presumptively has rights to visitation with their child.68

Legal custody refers to decision-making authority and responsibility about larger issues, most typically healthcare, education and religion.69 These issues reflect the parent’s values. Sole legal custody means that one parent has final say, whether or not s/he involves the other parent in the decision.70 Split legal custody means that one parent makes decisions about some areas (e.g. religion and education) while the other has final say over other areas (e.g. medical decisions).71 It could also mean that one parent has custody of one child while the other parent has custody of the others.72 Joint legal custody means that parents must make large decisions together.73

[p. 147] A. Joint Custody

The concept of joint custody has long been controversial in the United States, and New York courts have struggled with the concept. New York Domestic Relations Law provides that for cases involving divorce, separation or annulment of marriage or actions involving custody or visitation “there shall be no prima facie right to the custody of the child in either parent.”74 As the New York County Supreme Court stated in the late 1970s:

A few years later, though, the Appellate Division, Second Department, spelled out the circumstances in which joint custody might be appropriate: “[a]n award of joint custody is only appropriate where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion (citation omitted). They must be capable of cooperating in making decisions on matters relating to the care and welfare of the children.”76 This was further defined by the Third Department. It is well settled that “[j]oint custody involves the sharing by the parents of responsibility for and control over the upbringing of their children, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out the joint custody arrangement.”77 For these reasons, although an award of joint custody generally is recognized as inappropriate where the parties [p. 148] are so embattled and embittered as to effectively preclude joint decision-making,78 “[s]uch an arrangement may be ordered . . . where both parties are fit and loving parents, possess a desire to share in the upbringing of their children and have demonstrated a willingness and ability to set aside their personal differences and work together for the good of their children.”79

The concept and the reality of joint custody grew out of the context of equal rights for women, including the right to work and to be free from having full-time child-rearing responsibilities.80 Men embraced joint custody because it gave them more rights than they had previously.81 Some authors have stated that by being more involved, non-custodial parents will be more likely to pay child support.82

On the other hand, some feminists have criticized the concept of joint custody. One argument is that men who had little to do with their children are suddenly given equal say in how they will be raised.83 Some advocates argue that it is bad for children to be raised in two different homes.84

And yet joint custody has its proponents, precisely because it is based upon a value of equality between the parents. As Jo-Ellen Paradise stated:

Today, joint custody (legal, physical or both) is presumed in [p. 149] many states, including California, Connecticut, Florida, Idaho, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, Tennessee and Texas.86 Although joint custody is not presumed in New York State, New York Domestic Relations Law Section 240 provides that the court:

Professor Guggenheim argues that child custody disputes are not about the children at all, but serve the parents’ interests.88 Others have also seen custody disputes as resembling property disputes. As professor and noted family law scholar Andrew Schepard put it:

In English common law, it was presumed that men would be awarded custody because of this ownership right.90 In the late nineteenth century, American case law reversed this presumption in favor of the woman in a custody dispute.91 The “tender years doctrine” assumed that women were better nurturers of small children than men.92 This was the predominant case law through the late 1950s. The resurgence of middle class women into the work force in the 1960s led to courts trying different standards and arrangements [p. 150] to make custody decisions.93

How do judges decide? Today practitioners operate under the “best interests of the child” doctrine, which compares the parents’ interactions with the child and siblings, the child’s adjustment to the parents’ homes, the child’s wishes, and the mental and physical health of all involved.94 The best interests doctrine seems both fair and child-centered.

Yet there are problems with the best interests standard, too. It is applied unevenly, with some judges determining that some factors matter more and some not at all. It pits one fit parent against another, often with the child caught in the middle. Professor Guggenheim points out that “by relying on such an indeterminate standard, parents are encouraged to litigate their dispute with their ex-partner.”95 He states that the number and intensity of contested custody cases has risen exponentially.96 In addition, these cases last longer and are costlier to resolve. In divorce cases this means that the money which was meant for the child’s care, upbringing, and education is now going to parents’ attorneys.97

One problem with joint custody, either as agreed to in mediation or as awarded by the court, is that if parents cannot agree on an issue in the future, they must come back to court to have the issue resolved by a judge or referee. As one family court judge put it, “while joint legal custody may sound like the fairest and best option, unless the parents can talk to each other and mutually reach decisions about their child, no matter how they may feel about each other, joint legal custody cannot work.”98 Mediation is designed to help parents talk to and mutually reach decisions about their children.

Detractors from joint custody argue that people may come back several times to file violations or requests to modify custody and visitation orders. This may happen more often in family court where there are no filing fees and where most people represent themselves than in supreme court. Repeated filings, of course, clog up the judicial system, which cannot “micromanage” these disputes.

There is a sense among judges that, if people could handle [p. 151] their own problems, they would not have come to court in the first place.99 I would argue, however, that people who use mediation to reach an agreement are more prone to take responsibility for their actions and to work things out with each other (albeit with the help of a third party) than are people who simply rely on an authority figure to make a decision for them. Parents who can mediate successfully are the best candidates for joint custody. Therefore, it is ironic that clients who have been through mediation are the very litigants who are barred from obtaining joint custody orders. Additionally, there is no evidence that people with joint custody as a result of mediated agreements come back to court more frequently than those granted joint custody by a judge.

Then there are, of course, the issues of class and race, which cannot be ignored in any discussion about New York City Family Courts. There is a general perception that the courts play a larger part in the role of the lives of the poor. Certainly that is reflected in the “apartheid” reality of who the family court litigants are. I do not imagine that the judges who came up with the policy not to allow joint custody in mediated agreements were overtly contemplating that people of a certain class or race could not handle the responsibility of such a determination. However, since we have a kind of de facto segregation among the Courts, the impact of what happens in Family Court is certainly felt more in poor, non-white communities than it is in the general population.

The Court’s Alternative Dispute Resolution Coordinator, Catherine Friedman, Esq., suggested that judges might be more open to agreements including a provision for joint custody if they are well-thought-out and detailed. She referred to a Parenting Plan checklist, which had been given to Program mediators and which serves to remind the mediator to review the details of exactly how the parents will share time with their children, and how they will make decisions in the future.100 While parties may find it hard to project what situations will arise, mediators know that the details are central to a good agreement. Certainly, lawyers know that it is in interpretation where the real basis for future disputes can arise, and that cases can rise or fall on the interpretation of one or two words.

IV. Joint Custody In Mediated Agreements

Beginning in May 2007, Program mediators were told that they could no longer write agreements with joint custody written into them in Brooklyn. We were told that this was a mandate of the judges and referees who heard custody and visitation cases. It was only the Brooklyn judges who insisted on this, not the judges in other boroughs. It was, they explained, a question of judicial economy. Their thinking was that, if couples got along so poorly that they had to come to court to resolve their differences, it was clear that they could not make decisions together, thus they were not suitable for joint custody. To include joint custody (and therefore joint decision-making) was only to invite couples to come back again and again when any little issue arose.

The Program staff gave us suggested language, which at least one judge found acceptable.101 The suggested language looks like joint custody at first, but is in fact sole custody as given to the parent who has physical custody. It says:

Although this language gives the non-custodial parent the opportunity to have more involvement than straight sole custody, it is not enforceable as a joint custody arrangement. The language suggested for sole custody is as follows:

The above language promulgates a half-truth. The words “joint custody” are in the language, but the reality is that the person with final decision-making power has sole legal custody.

To disallow joint custody in a mediated agreement is in conflict with the goal of self-determination, which is one of the core foundations of mediation.

Did they think that poor people were more likely than rich people to come back to court? Perhaps-and perhaps this is true. There are no filing fees in Family Court, and because people tend to represent themselves rather than hire lawyers, it is a much cheaper process. Would judges have imposed such a rule if the clients [p. 155] were middle class and white? It’s hard not to entertain that thought.

Sometimes the judges are right. In one case I mediated, the father insisted on keeping primary custody even though he often left the child with the child’s grandmother rather than letting the mother have the child more often. He was unwilling to move from his position, and they could not come to an agreement. But there are times when couples have a history of working things out, and of getting along. In those cases, I believe joint custody would be appropriate.

V. Conclusion

Joint custody should be one of the options available to couples that are divorcing, no matter how poorly they are able to co-parent. Joint custody is available to parents in New York City Family Courts in Manhattan, the Bronx, Queens and Staten Island. It must also be available to parents who mediate their agreements in Brooklyn. The mediative experience can be a model for joint decision making, and can serve to help couples overcome their differences by focusing on the larger picture, particularly on the needs of their children. This goal is idealistic, but once they have been through mediation, parties have listened to each other and worked together to arrive at mutually agreeable solutions.

This mediative process could also improve dialogue between judges and mediators, who also have a continuing relationship. They could apply the principles of mediation to work together to reach mutually agreeable solutions within the realities of the court system.

Family Court Judges have the incredibly difficult task of handling huge volumes of cases with few resources and often complicated facts. However, they must never lose their humanity. The great judge, Jack B. Weinstein, Senior Judge United States District Court of the Eastern District of New York, once wrote under the header “Empathy, Most Powerful Solvent”:104

In other words, judges must be careful not to think of the people before them as “the other.” They must be careful not to perpetuate a two-tiered system of justice. Each person before the bench must be treated as a neighbor, a friend, a relative. As Judge Weinstein stated later in the same article, it comes down to a familiar philosophy promoted by Hillel and Jesus Christ, and is also espoused by Professor Martin Guggenheim “do unto others as you would have others do unto you.”

Litigants who appear in family court are often the most disenfranchised members of our community. I believe the following suggestions will further the goals of mediation while acknowledging the economic and racial realities of an overcrowded court system:

Footnotes