Most conflicts around custody and access are resolved by the parents themselves outside court. Only 3.8 percent of all custody and access cases are finalized through contested hearings, according to Department of Justice statistics. However, most custody and access cases that do end up in the court system involve higher levels of violence compared to the general population of divorcing adults. Alternative dispute resolution programs, and in particular mediation, are solutions to protracted custody and access battles in court and lead to ideal custody and access arrangements. While there are serious concerns with the current family law court system, many of the same problems inherent in that system are simply reproduced in the private and less visible forum of mediation.
Mediation presupposes that the parties are on equal footing.
Mediation will not work where power imbalances exist. In the best of cases, equality of bargaining power between spouses is extremely rare, which means that useful mediation sessions are virtually impossible. Mediation should never be mandatory and there should never be a negative inference drawn by the courts against a party who refuses to participate in mediation. As well, mediation is never appropriate in situations in which a man has been violent or abusive to a female partner or their children. In contrast, the majority of male victims are assaulted or murdered by strangers, and only 36 percent by relatives or acquaintances.