Divorcing parents sit with a mediator and craft a custody schedule that works for their children's activities, their work schedules, and maintains both relationships. The agreement costs $2,000 and takes three sessions instead of the $40,000 and two years that litigation would have required. Another separating couple begins mediation, but one partner uses the process to gather information about the other's finances while secretly hiding assets and preparing for litigation. A parent pressured to mediate with their abusive ex-partner accepts an unfair custody arrangement because the mediator missed the power dynamics and they saw no alternative to agreement. A child welfare worker refers a family to mediation to develop a care plan that keeps children at home rather than proceeding to apprehension. Family Dispute Resolution encompasses mediation, collaborative law, parenting coordination, and other alternatives to courtroom battles over custody, divorce, and child protection. Whether these processes serve children and families better than traditional litigation, or whether they create risks that formal legal oversight exists to prevent, remains deeply contested.
The Case for FDR as Family-Centered Justice
Advocates argue that family conflicts resolved through litigation damage everyone involved, especially children. Adversarial proceedings position parents against each other, destroying any remaining cooperation precisely when they need to co-parent effectively. Judges make life-altering decisions about children based on brief court time with incomplete information, while parents who know their children best have minimal input beyond testimony designed to discredit the other parent. From this view, Family Dispute Resolution centers those most affected: parents make decisions about their own families rather than having strangers impose solutions, children benefit from parental cooperation rather than courtroom battles, and families preserve relationships essential for ongoing functioning. Mediation allows creative, individualized custody arrangements that rigid court orders cannot provide. A schedule accounting for both parents' work patterns, children's extracurricular activities, and family traditions emerges from mediation but would never be ordered by a judge. Collaborative law, where lawyers commit to settlement and withdraw if litigation proceeds, aligns professional incentives with family interests rather than prolonging conflict. Parenting coordination provides ongoing support for high-conflict parents, helping them make day-to-day decisions without repeated court applications. Research shows children fare better when parents resolve disputes cooperatively. FDR costs less, concludes faster, and produces higher satisfaction than litigation. Countries and jurisdictions with robust family mediation programs demonstrate it works: preserved parental relationships, child-focused agreements, reduced court backlogs, and families who maintain some capacity to work together despite separation.
The Case for Court Protection and Oversight
Others worry that Family Dispute Resolution assumes equal power and good faith that often do not exist in separating families. Domestic violence, economic control, and psychological manipulation create power imbalances that informal processes cannot adequately address. A victim of intimate partner violence sitting across from their abuser in mediation faces inherent coercion that no facilitator can fully eliminate. From this perspective, requiring FDR before court access forces vulnerable parties to negotiate with those who have harmed them as a precondition to legal protection. Mediators lack the investigative power that courts have to uncover hidden assets, enforce disclosure, and ensure financial settlements are fair. Parents in high conflict often cannot make good decisions for their children without judicial oversight. Moreover, children's interests may conflict with what either parent wants, requiring independent representation and neutral adjudication that mediation does not provide. Court processes, while adversarial and expensive, protect procedural rights, create enforceable orders, and provide appeals when outcomes are unjust. The solution is not replacing courts with FDR but ensuring that families can access traditional litigation when needed while offering voluntary mediation as an option for those who choose it. Mandatory FDR that parties must attempt before court access serves system efficiency at the expense of those who need legal protection most.
The Domestic Violence Screening Crisis
Most jurisdictions recognize that domestic violence makes family mediation inappropriate, yet screening mechanisms routinely fail. Victims may not disclose abuse to intake workers due to fear, shame, or not recognizing patterns as abuse. Some abuse is psychological or economic rather than physical, making it harder to identify. Mediators receive limited domestic violence training and miss controlling behaviors that occur during sessions. Even when abuse is disclosed, many programs proceed with "special protocols" like shuttle mediation or support persons, rather than recognizing that power imbalances make informed, voluntary agreement impossible. Whether any screening can reliably identify inappropriate cases, or whether the prevalence of domestic violence in separating families means FDR creates systemic risks to survivors, determines whether mandatory or strongly encouraged family mediation serves or harms vulnerable parties. Meanwhile, some domestic violence survivors want mediation as a less adversarial alternative to litigation and feel infantilized when programs exclude them categorically. Whether victim choice or professional assessment should determine appropriateness remains unresolved.
The Children's Voice Challenge
Family Dispute Resolution centers parents in decision-making, yet children are the most affected. Mediators may interview children to understand their preferences and needs, but children have no independent representation ensuring their interests are protected when parental interests conflict with them. A parent focused on minimizing child support may agree to custody arrangements that serve financial goals rather than children's needs. Parents in high conflict may craft parenting plans that reduce their own friction while subjecting children to instability. From one view, parents know their children best and should control family decisions with mediators ensuring agreements serve children's interests. From another, parents in the midst of separation often cannot see past their own needs and require someone focused solely on children's wellbeing. Whether children need lawyers in FDR, voice through mediators, or simply trust in parents guided by facilitators shapes how child-centered these processes actually are versus how child-centered they claim to be.
The Enforcement Gap
Agreements reached through family mediation become enforceable when filed as consent orders, yet enforcement remains problematic. Someone who agrees to a parenting schedule and then ignores it forces the other parent back to court for enforcement. Financial agreements depend on honest disclosure, yet one party may have concealed assets during mediation that only emerge later. Unlike litigation where judges actively supervise disclosure and have contempt powers, mediation relies on voluntary compliance. Whether FDR agreements are worth less than court orders because enforcement is more difficult, or whether the cooperative process that produced them makes voluntary compliance more likely than compliance with imposed judgments, depends on individual cases and parties' motivations. Meanwhile, the costs of returning to court for enforcement can exceed the savings from mediation, leaving parties worse off than if they had litigated initially.
The Question
If family litigation damages children and relationships while enriching lawyers, does that justify making Family Dispute Resolution mandatory before court access, or does it create barriers that force vulnerable parties to negotiate with those who have power over them? Can mediation and collaborative processes adequately protect children's interests without independent legal representation and judicial oversight, or do they assume parental good faith that high-conflict separation often lacks? And when domestic violence affects huge percentages of separating families, can any screening reliably identify inappropriate cases, or does the prevalence of abuse mean informal family processes create systemic risks to the safety of survivors and their children?