The adversarial process serves its purpose in our society; however, that does not mean that there are not better ways to handle specific cases. To that end, nonadversarial systems offer tremendous potential in civil litigation, in governmental relations, in neighborhood and family conflicts, and, especially, in divorce child custody cases. If mediation statutes are contemplated for the sole purpose of judicial economy, discretionary statutes are sufficient. For the true value of mediation to be experienced, however, a mandatory scheme containing safeguards for cases involving domestic violence should be implemented.Understandably, many mediators are leery of the effect that mandatory schemes have on the preferred voluntary nature of mediation. Divorce child custody cases, however, need mediation precisely because the conflicts involved are those for which parties are unlikely to voluntarily seek mediation. If mandatory schemes contain the appropriate safeguards, and the adversarial system continues to be available for situations in which those safeguards are triggered, the two most important goals of the divorce child custody process, protecting the individuals involved and providing the children involved with the best opportunity to recover from a traumatic experience, can be accomplished.
Ben Barlow, Divorce Child Custody Mediation: In Order to Form a More Perfect Disunion , 52 Clev. St. L. Rev. 499 (2004-2005)