Writing Sample Law School

Family Law Theory and Policy
Jamie Kurylo McMahon
A Call for Divorce, Custody and Support Reform in Philadelphia County
The notion that ordinary people want black-robed judges, well-dressed lawyers and fine-
paneled courtrooms as the setting to resolve their disputes isn’t correct. People with problems, like
people with pains, want relief and they want it as quickly and inexpensively as possible.
Chief Justice Warren Burger1
Adversarial litigation has increasingly been viewed as an overly expensive, complicated,
painstakingly slow dispute resolution process that exacerbates interfamily conflict and is
detrimental to children.2
Alternatives to adversarial litigation have been suggested in order to
improve the process of divorce for families by shifting the focus to their emotional and educational
needs as opposed to solely on their legal rights and responsibilities.
A divorcing family should be provided with multiple interest-based and cost-effective
dispute resolution methods in order to ensure the most appropriate method is selected.3
For
example, it has been argued victims of domestic violence and couples with an extreme power
imbalance are unfit candidates for mediation.4
Mediation is a confidential procedure conducted by a
neutral professional where the parties are responsible for determining their own outcome.5
Thus, in
mediation it is necessary to encourage both parties to feel as though they are able to advocate for
themselves and adequately express their own interests without fear of retribution.6
Victims of
domestic violence often exhibit feelings of powerlessness and intimidation, which could lead to an
1
Address by Chief Justice Burger at the ABA Conference on the Resolution of Minor Disputes (May 27, 1977), quoted
in Wall St. J., Oct. 27, 1978, at 48, cols. 5-6.
2
See Thomas E. Carbonneau, A Consideration of Alternatives to Divorce Litigation, 1986 U. ILL. L. REV. 1119, 1119-
23 (1986).
3
Gregory Firestone and Janet Weinstein, In the Best Interests of Children: A Proposal to Transform the Adversarial
System, 42 FAM. CT. REV. 203, 208-209 (2004).
4
See generally Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1600-1607
(1991)(discussing the dangers of mandatory mediation for those suffering from physical or mental abuse and noting that
this danger falls disproportionately on women).
5
John Lande and Gregg Herman, Fitting the Forum to the Family Fuss, 42 FAM. CT. REV. 280, 282 (2004).
6
See generally id.
1

unbalanced agreement.7
The dispute resolution process chosen should best fit the needs of all
involved parties.8
In an effort to decrease the detrimental impact of litigation on divorcing families and make
divorce more efficient, many jurisdictions have found it beneficial to provide parties with less
contentious alternative dispute resolution programs. For example, some jurisdictions have
implemented triage systems,9
mandated mediation,10
created education programs to inform parents
of the dispute resolution processes available,11
and provided social services such as individual
counseling.12
These approaches have helped to provide families with their emotional and
educational needs in addition to decreasing the amount of unnecessary and improper litigation when
the dispute is no more than an unaddressed emotional issue.13
In addition, many of these programs
have been able to implement an effective screen for families with a domestic violence concern.14
However, Philadelphia County is not one of these jurisdictions. When a divorce is filed in
Philadelphia, the couple is not advised of alternative dispute resolution options or directed towards a
mandatory mediation program. The couple is not educated on the legal processes available or
instructed how to help their families cope and adapt during this time of transition. Instead,
Philadelphia County provides a two page online only brochure with information regarding fault and
no fault divorce, alimony, property distribution, filing location, and cost of the filing fee.15
A phone
7
Id.
8
Firestone, supra note 3, at 209-210.
9
Peter Salem, Debra Kulak, and Robin M. Deutsch, Triaging Family Court Services: The Connecticut Judicial
Branch’s Family Civil Intake System, 27 PACE L. REV. 741, 746 (2007).
10
See e.g. Yelena Ayrapetova, HB 004: Mandatory Divorce Mediation Program Passed in Utah, 7 J.L. & FAM. STUD.
417, 417-419 (2005); H.B. 4, 2005 LEG., 56TH
SESS. (Ut. 2005), available at http://tax.utah.gov/adr/handouts/2005-03-
09-04.pdf.
11
Susan L. Pollet and Melissa Lombreglia, A Nationwide Survey of Mandatory Parent Education, 46 FAM. CT. REV.
375, 377 (2008). However, Pollet states that cooperative parenting should not be encouraged when domestic violence is
an issue. Id.
12
Alicia M. Homrich, Michelle Muenzenmeyer, and Alice Blackwell White, The Court Care Center for Divorcing
Families, 42 FAM. CT. REV. 141, 141 (January, 2004).
13
Homrich, supra note 12, at 141-142.
14
Salem, supra note 9, at 746; See e.g. Ayrapetova, supra note 10, at 417-419; H.B. 4, 2005 Leg., 56th
Sess.
15
Divorce in Philadelphia County, (March, 2007) available at http://fjd.phila.gov/pdf/brochures/dr/divorce-
brochure.pdf.
2

number is provided for the Philadelphia Bar Association’s Lawyer Referral and Information Service
on the last page.16
In addition, Philadelphia County provides a two page online only brochure
regarding custody mediation stating more information will be provided when you arrive for your
first hearing.17
Even if a divorcing couple does take the initiative to conduct online research and does call to
obtain information, it is not enough to direct the majority of divorcing families away from
adversarial litigation. In order to reduce the negative effects of litigation on divorcing families in
Philadelphia, make divorce a more efficient process, reduce the cost of obtaining a divorce, and
increase awareness of alternative dispute resolution processes available, Philadelphia County should
implement a new comprehensive, court-annexed dispute resolution program focusing on the
emotional and educational needs of divorcing families and increasing the efficiency of the divorce
process.
Part I of this article will discuss the problems associated with the litigation process in
Philadelphia, focusing on the harmful effects of litigation on the divorcing family, the expense of
litigation, the time-consuming nature of the process, and the fact that there is a lack of awareness
regarding alternative dispute options. Next, Part II will analyze the attempts of other jurisdictions to
solve these problems through the implementation of triage systems, mandatory mediation, and
parent education courses. In Part III, this article will then propose how Philadelphia County should
implement divorce reform focusing on the emotional and educational needs of divorcing families
and increasing the efficiency of the divorce process.
I. The Problem
Adversarial litigation has been criticized as an improper dispute resolution method for the
majority of families going through divorce. The main criticisms of adversarial litigation in
16
Id. at 2.
17
Consider Mediation, available at http://fjd.phila.gov/pdf/brochures/dr/Mediation-Brochure.pdf (stating, “Mediation
will not delay you case”).
3

Philadelphia County are that it is extremely detrimental to divorcing families, in particular children,
excessively expensive, overly time-consuming and that families going through the process are
unaware of the availability of alternative dispute resolution options that are less harmful, less
expensive, and take less time to complete.
A. Harmful Effects on the Divorcing Family
The impact of a high-conflict divorce on families, in particular children, is extremely
detrimental and long-term. Obtaining a divorce through traditional litigation has been labeled
painful and inefficient18
and blamed for the escalation and exacerbation of conflict and trauma.19
It
has been suggested that a high-conflict divorce causes emotional trauma second to the death of a
spouse and involves a grief and recovery process that is similar to the stages of recovery from the
death of a loved one.20
The system forces the decision of which party is “legally correct,”21
polarizing the couple and driving them further apart. 22
This causes a long-term adverse affect on all
parties involved and increases the likelihood for re-litigation.23
Divorcing couples often become disempowered in litigation because they are no longer able
to make decisions for themselves regarding their children and their property. 24
Instead of
expressing their feelings and telling their side of the story, they are forced to make the facts fit into
legal categories and often advised what they feel is relevant is actually irrelevant in court. 25
Because
lawyers take an oath to zealously represent their clients, they must advocate for the best possible
18
Patrick Foran, Adoption of the Uniform Collaborative Act in Oregon: The Right Time and the Right Reasons, 13
LEWIS & CLARK L. REV. 787, 788 (Fall, 2009).
19
Steven C. Bowman, Idaho’s Decision on Divorce Mediation, 26 IDAHO L. REV. 547, 548 (1989/1990).
20
Pauline H. Tesler, Collaborative Family Law, 4 PEPP. DISP. RESOL. L.J. 317, 321 (2004).
21
Id. at 549.
22
Carol J. King, Burdening Access to Justice: The Cost of Divorce Mediation on the Cheap, 73 ST. JOHN'S L. REV. 375,
376 (1999).
23
Andrew Schouten, Breaking Up is No Longer Hard to Do: The Collaborative Family Law Act, 38 MCGEORGE L.
REV. 125, 549 (2007).
24
Firestone, supra note 3, at 204.
25
Id..
4

property division, custody, and support arrangement for their client only.26
An attorney’s request
for relief is often supported by upsetting allegations producing permanent wounds.27
In addition, litigation focuses on legal issues and ignores the emotional and informational
needs that accompany family members going through a divorce.28
As divorcing families shift
family roles and reevaluate family identities, they require financial and psychological support,
information, and new skills.29
A divorce decree and custody orders handed down in court do not
assist in helping dysfunctional families to function better nor do they improve family dynamics.30
The court does not focus on repairing and preserving relationships even though ongoing healthy
relationships are central to custody cases.31
Children are tremendously impacted by a high-conflict divorce as well as by a high level of
post divorce inter-parental conflict by creating anxiety and stress.32
When a parental relationship is
broken, the effect on children is devastating.33
Studies have shown that approximately one quarter
of divorcing couples report high degrees of hostility and discord over the daily care of their children
many years after the separation.”34
Moreover, children require extra attention during the divorce
process; however, this attention is not typically received due to the distraction of the time-
consuming litigation process, the demands of divorce, and family restructuring.35
Negative
emotional reactions are intensified resulting in “ineffective co-parenting strategies, reduced
parenting, disrupted parent-child relationships, and inability to use proactive coping strategies.”36
26
Bowman, supra note 19, at 550.
27
Tesler, supra note 20, at 323-324.
28
Id. at 549.
29
Homrich, supra note 12, at 141.
30
31
Id. at 204.
32
Foran, supra note 18, at 792.
33
34
Homrich, supra note 12, at 142 (quoting Janet R. Johnston, Building Multidisciplinary Professional Partnerships with
the Court on Behalf of High-conflict Divorcing Families and their Children: Who Needs What Kind of Help?, 22 U.
ARK. LITTLE ROCK L. REV. 453, 453-479 (2000)).
35
Tesler, supra note 20, at 322.
36
5

Studies have also shown this conflict results in poorer emotional and psychological
adjustment of involved children. 37
Girls exposed to parental anger and high-conflict show
increased withdrawal and boys tend to demonstrate increased aggressiveness.38
San Francisco Superior Court Judge Donna Hitchens states, “[W]e all know that litigation
only escalates [domestic relations] disputes rather than resolving them. . . . It's a totally negative
approach, and children suffer the most. If you care at all about kids, you've got to hate this
system.”39
Children in high-conflict custody cases often testify in court and are forced to take sides
against one or both parents.40
A child’s opinion may be misunderstood after expressed through his
or her attorney or guardian or not considered in court at all.41
Exposure to conflict also has the potential to increase physical violence among parents.
Professor Andrew Schepard explains that because anger, a common emotion in arguments between
divorcing couples, increases blood flow to the hands, the individual experiencing this emotion is
more likely to strike out or use a weapon.42
Anger also increases adrenaline and heart rate,
increasing the potential for a “vigorous responsive action.” 43
Children that are exposed to parental
hostility and aggression demonstrate depression, disruptive behavior, and maladjustment in
adulthood.44
B. Excessive Cost
37
King, supra note 23, at 377.
38
Charles B. Bauer and Kit Furey, Bench/Bar Committee Recommends Practical Ways to Reduce Impact of High-
Conflict Divorce on Children, 39 JUN. ADVOCATE (IDAHO) 13, 13 (June, 1996).
39
Foran, supra note 18, at 788-789 (quoting Pauline H. Tesler, Donna J. Hitchens: Family Law Judge for the Twenty-
First Century, 2 COLLABORATIVE Q. 1, 3 (2000)).
40
41
Id. at 206-207.
42
Andrew Schepard, Parental Conflict Prevention Programs and the Unified Family Court: A Public Health
Perspective, 32 FAM. L. Q. 95, 104 (1998).
43
Id. at 104.
44
Pollet, supra note 11, at 376.
6

The potential cost of a divorce through traditional litigation is extremely high. Statistics
provided in 2008 by the Boston Law Collaborative in evaluating 199 recent cases demonstrate that
on average divorce litigation costs $77,746, while on average divorce mediation costs $6,613 and
collaborative divorce costs $19,723.45
If one party is the sole provider for the household, it is likely
he or she will pay the attorney fees for both parties.
Pennsylvania family law practitioner, Jonathan Hoffman maintained that the cost of a
litigated divorce varies greatly on factors such as the attorney’s billable hours and the complexity of
the case.46
In his experience, he has observed cases where a client was billed $120,000 per month
and cases where the total cost of the divorce was $10,000.47
Another Pennsylvania family law
practitioner, Julie Ganz maintained she most often she sees divorces that range between $15,000
and $50,000.48
However, she stated that if custody or support become an issue, the case becomes
much more expensive and time consuming.49
One mediation service in California determined that an average, low-conflict divorce with
an uncontested final judgment where some negotiation took place with attorneys charging $375 per
hour costs the couple a total of $40,000.00.50
Three sessions of mediation lasting three hours each
would amount to an approximate total of $8,500 including all paperwork and consultations with
independent attorneys.51
Six sessions of mediation lasting three hours each would amount to
approximately $21,000 including all paperwork and consultations with independent attorneys.52
An
average fully contested case involving custody and financial issues including child custody
45
David A. Hoffman, Colliding Worlds of Dispute Resolution: Towards a Unified Field Theory of ADR, 2008 J. DISP.
RESOL. 11, 30-31 (2008).
46
Interview with Jonathan Hoffman, Associate of Weber Gallagher, via phone on December 2, 2009. Notes available
upon request.
47
Id.
48
Interview with Julie E. Ganz, Associate of Fox Rothschild, through email on December 16, 2009. Notes available
upon request.
49
Id.
50
PeaceTalks, Compare the Costs, http://www.peace-talks.com/compare.php (last visited December 16, 2009).
51
Id.
52
Id.
7

evaluators and forensic valuation experts for business and pension distribution costs the couple a
total of $350,000.53
Eight mediation sessions lasting three hours each would amount to
approximately $25,000 including all paperwork and consultations with independent attorneys.54
C. Inefficient Timing
The amount of cases before the courts in addition to the fact that burdensome procedural
matters are focused on with a great amount of detail produces significant delays and increases the
length of the proceedings.55
The high divorce rate also contributes to this issue.56
Statistics
provided in 2008 by the Boston Law Collaborative demonstrate that parties spent the greatest
amount of time obtaining a divorce in traditional litigation, while mediation, collaborative divorce,
and cooperative divorce tied for taking the least amount of time.57
Pennsylvania family law attorney, Bonnie Raynes claims that one of the greatest problems
in the judicial system is that divorcing families are not educated on what a divorce or custody case
53
Id.
54
Id.
55
See Carbonneau, supra note 2, at 1119-23.
56
Bowman, supra note 19, at 548.
57
Hoffman, supra note 51, at 31.
8

entails, how expensive and time consuming both may become, and what other options are available
to them such as collaborative law58
, cooperative law59
, mediation60
and arbitration61
.62
Some jurisdictions such as Maricopa County, Arizona require parties to watch videotapes
discussing mediation including vignettes demonstrating how the process works.63
Some courts
require parties attend mediation sessions or education sessions discussing the availability of
alternative dispute resolution processes.64
However, Philadelphia allows a couple to file for divorce,
custody, and support and litigate their entire case without educating them on their available options.
While mediation is available inside Philadelphia County’s family court, parties are not advised of its
availability until they are waiting for their first court hearing.
II. Comparative Analysis of the Attempts of Other Jurisdictions to Create a Solution
Many jurisdictions have attempted to decrease the detrimental impact of litigation on
divorcing families and make divorce more efficient by providing parties with new approaches to
dispute resolution.
A. Implementation of a Triage System
58
In collaborative law, both parties obtain a separate lawyer and sign a “disqualification agreement” which mandates
that the lawyers and parties commit to avoid litigation. Lande, supra note 5, at 281. If they should change their mind or
threaten litigation, the lawyers are disqualified from representing the parties and must withdraw. Id. Both parties agree
to full disclosure and are allowed to express their feelings so long as they do not disrupt the process. Id. at 283.
Collaborative attorneys have the ability to strongly advocate for their clients and provide legal advice. Id. However,
they are committed to a problem-solving, respectful approach. Id.
59
In cooperative law, the parties do not sign a disqualification agreement. Lande, supra note 5, at 281. While the
parties and attorneys commit themselves to a problem-solving approach, if either party decides they would like to
litigate their attorney is not forced to withdraw. Id.
60
Mediation is a confidential process presided over by a neutral professional who is unable to give legal advice. Lande,
supra note 5, at 282. Self-determination is encouraged and the parties have input in determining how their dispute
should be resolved. Id.
61
Arbitration is an extremely flexible process and the parties have the ability to determine the rules and procedures that
will govern the procedure. Andre R. Imbrogno, Arbitration as an Alternative to Divorce Litigation: Redefining the
Judicial Role, 31 Cap. U. L. Rev. 413, 413-415. (2003). For example, parties can determine whether the rules of
evidence should be applied, whether the outcome should be binding or non-binding, and whether the procedure will be
public or private. Id. Depending on the terms chosen by the parties, arbitration can be quick, private, inexpensive and
unappealable. Id. While courts have been reluctant to enforce a nonbinding arbitration agreement, they are obliged to
enforce an agreement determined in binding arbitration. Id.
62
Interview with Bonnie Raynes, in person on September 22, 2009. Notes available upon request.
63
64
Id.
9

Scholars have suggested that a triage system would create a more efficient approach to
divorce and custody litigation, reducing the detrimental impact of litigation on families.65
For
example, Professor Jeffrey W. Stempel suggests a modified multidoor courthouse would increase
party satisfaction and reduce conflict by directing parties to dispute resolution processes that best fit
their needs.66
This system would begin with a discussion between the divorcing couple and a
judicial officer regarding which dispute resolution processes are available and which would be most
beneficial for them.67
The parties would then have an opportunity to decide whether they would
like to select an alternative dispute resolution process or go forth with litigation.68
If the parties
choose an alternative dispute resolution process, the presiding officers should have the ability to
exercise discretion and resolve matters creatively as opposed to being confined in their specific
roles as an arbitrator or mediator.69
Scholars Gregory Firestone and Janet Weinstein propose the implementation of a new
comprehensive dispute resolution program based on the multidoor courthouse model that reduces
the detrimental effect of divorce on families by providing a more humane and cost-effective
solution.70
This model is based on an understanding of the psychological and social needs of parties
and encourages collaborative, interest-based problem solving.71
It provides multiple dispute
resolution options, focuses on future-oriented strategies, encourages professional collaboration,
empowers parents, and allows for special cultural considerations.72
In this model, parties would be
greeted by a Dispute Resolution Coordinator who would screen the parties for domestic violence
65
See e.g. Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli,
Failed Overture, or Fledgling Adulthood?, 11 OHIO ST. J. ON DISP. RESOL. 297, 361-365 (1996).
66
Id.
67
Id. at 371.
68
Id. at 371.
69
Id. at 379-380.
70
71
Id. at 212.
72
Id. at 207-212.
10

and fraud, educate them on the available methods of dispute resolution and assist them in making
their decision.73
If one method cannot be agreed upon, the Coordinator may mediate the issue.74
Jurisdictions such as Connecticut have adopted this triage model with the objective of
developing an efficient approach to divorce and custody and reducing the detrimental effect of a
high-conflict divorce on families.75
Prior to implementing this program, Connecticut was receiving
an increasingly growing and complex caseload during a time when court resources were
diminishing.76
In addition, Connecticut judges, lawyers, mediators and custody evaluators reported
a significant increase in “intractable disputes.”77
To combat these problems, Connecticut combined
six independent agencies into one Judicial Branch agency entitled Court Support Services Division
(CSSD). 78
CSSD’s goal is to develop and implement an intake and assessment process, which
would identify the level of interfamily conflict and the complexity of issues and in order to
determine the most appropriate intervention for each family.79
CSSD offers a multitude of
alternative dispute resolution programs such as group mediation processes for high conflict families,
mediation-evaluation hybrid processes, and conflict resolution conferences.80
The new approach CSSD has taken includes a comprehensive, detailed intake and
assessment program, which allows professionals to determine which program is right for each
individual family. 81
This program is administered in a face-to-face session where counselors have
the ability to screen for domestic violence, gather basic information about the family, observe the
parties’ nonverbal and verbal communication skills, and assess the complexity of the issues.82
73
Id. at 208, 210. Fireston and Weinstein suggest that parties could be required to submit financial affidavits to ensure
all financial information provided is correct. Id. at 210.
74
Id. at 211.
75
Salem, supra note 9, at 746.
76
Id. at 767.
77
Id. at 746.
78
Id. at 752.
79
80
Id. at 752.
81
Id.
82
Id. at 758-760.
11

These observations help determine which process best fits the needs of the family. For example, if
a low level of conflict exists or the parents have good communication skills and are able to
cooperate with each other, the parties are likely referred to mediation.83
An evaluation of Connecticut’s new approach shows that the program has succeeded in
increasing efficiency by reducing the amount of time parties spend in resolving their dispute.84
In
addition, the rate of agreement in mediation increased by thirteen percent and the rate of agreement
in comprehensive custody evaluations increased by sixteen percent.85
Long-term benefits of the
project have not yet been provided, but are currently being assessed.86
B. Mandatory Mediation
Some jurisdictions have instituted a mandatory mediation program in order to mitigate the
increasing amount of divorce and custody litigants and implement a dispute resolution program that
is less expensive and less time consuming. 87
Mediation reduces the amount of antagonism and
trauma for divorcing families by providing a forum with open communication where compromise
and negotiation are encouraged. 88
In addition, mediation encourages self-determination and the
parties have input in determining how their dispute should be resolved, increasing the possibility for
practical post-divorce relationships.89
As a result, parties are more likely to comply with mediation
settlements and less likely to relitigate.90
For example, Utah instituted a mandatory mediation program in order to reduce the court’s
docket, reduce the demand on court resources, accelerate the rate of case resolution, reduce the cost
of resolving conflicts, increase the litigants’ satisfaction with the court system, and improve
83
84
Id. at 767.
85
Id.
86
Id.
87
See e.g., Ayrapetova, supra note 10, at 417-419; H.B. 4, 2005 LEG., 56TH
SESS.
88
Id. at 418-419.
89
Ayrapetova, supra note 10, at 418-419.
90
Id.
12

relationships between disputing parties.91
Advocators for the program argued its long-term benefits
would outweigh all costs because the need for more mediators reduces the need for additional
judges and mediators will accelerate the speed in which disputes are resolved.92
Utah requires good faith participation in at least one session of mediation after a divorce
complaint is filed if any contested issues remain.93
The parties are required to use a mediator
qualified according to Utah’s Judicial Council and equally split this cost.94
However, Utah did
recognize that mediation is unsuccessful when parties are unable to bargain freely and created a
“good cause” exception.95
It has also been suggested that mediation increases the likelihood of party satisfaction. In
Ohio, a study was done of divorce mediation models in three county courts: Lucas County in
Toledo, Franklin County in Columbus, and Hamilton County in Cincinnati.96
In each county,
mediation was implemented in a different manner with varying costs. A survey of participants
demonstrated that parties were more satisfied with mediation results than results of attorney-
negotiated settlements.97
However, this satisfaction is decreased when the parties are forced to pay
for the service themselves. Parties were less likely to participate in voluntary mediation when they
were expected to hire mediators without assistance and were less satisfied when they were expected
to pay for both the mediator and an attorney.98
Nevertheless, the study determined that the rate of
settlement was similar between Lucas County where parties were provided with a free service and
Franklin County where parties paid for the service themselves.99
91
Id. at 418 (quoting Alison E. Gerencser, Family Mediation: Screening for Domestic Abuse, 23 FLA. ST. U. L. REV.
43, 49 (1995)).
92
Id. at 424 (quoting Amy Joi Bryson, Expansion Urged for Divorce Mediation, Deseret Morning News, Oct. 21, 2004,
at B04).
93
Id.
94
Id. at 418; H.B. 4, 2005 LEG., 56TH
SESS.
95
Id. “Good cause” has not been defined, but it has been suggested that domestic violence is considered to be within this
definition. Id. at 418.
96
97
King, supra note 23, at 440-441.
98
Id. at 451, 453
99
Id. at 454.
13

C. Implementation of Parent Education Programs and Social Services
Studies have shown that children are not always negatively impacted by the divorce of their
parents and in some situations can actually benefit from their separation provided their family has
an adequate income and the children maintain positive relationships with both parents.100
In order to
promote this outcome and reduce interfamily conflict, some jurisdictions have implemented parent
education programs, which inform parents of the legal process, increase parental sensitivity to their
children’s needs, reduce conflicts, improve parenting skills and promote more cooperative
approaches to parenting.101
Orange County, Florida took this idea one step further and created a
comprehensive, multi-level approach where divorcing families are provided with education and
social services after an intake assessment.102
In addition, parent education classes have decreased the amount of religitation. Parents who
participated in Ohio’s program entitled, “Children in the Middle” relitigated less than half as often
as those who did not attend.103
Parents who attended Illinois’ class entitled, “Children First” also
showed lower rates of relitigation than parents who did not.104
As of 2008, at least forty-six states
have implemented parent education programs with the majority mandating attendance.105
Surveys show that interparental conflict is the most thoroughly covered subject.106
This
topic is covered by demonstrating how conflict negatively affects children by subjecting them to the
risk of increased adjustment issues, educating parents in problem-solving approaches, and teaching
communication skills.107
Motivating videos are also often showed, which demonstrate what
children see in a high-conflict divorce and inspire parents to prevent the occurrence of destructive
100
Id. at 376.
101
Pollet, supra note 11, at 377. However, Pollet states that cooperative parenting should not be encouraged when
domestic violence is an issue. Id.
102
103
Homrich, supra note 12, at 379-380.
104
Id. at 380.
105
Id. at 375.
106
Id. at 377 (citing Matthew Goodman et al., Parent Psycho educational Programs and Reducing the Negative Effects
of Interparental Conflict Following Divorce, 42 FAM. CT. REV. 263, 268-69 (2004)).
107
Id. at 377.
14

behavior towards their children.108
In addition, programs assist parents in managing their anger
around their children, family and friends.109
Some programs provide parents with information regarding divorce, custody and support,
alternative dispute resolution processes, and available social services. For example, the Children in
the Middle Program of Ohio provides parents with a list of different legal services and outlines not
only the legal costs and benefits of these approaches but also the cost and benefit to the parents and
children.110
The PEACE program of New York advises parents of the legal process and how
disputes are resolved.111
Overall, participating parents have claimed the programs resulted in decreased interfamily
conflict and improved parenting skills. A voluntary parent education program in Maryland
demonstrated that six months after the class the parents’ adjustment to their divorce had improved
and they noticed an improvement in their communication skills with their children.112
Parents
recommended that the class become mandatory and, less than one year later, Maryland followed
this recommendation.113
Participating parents in Rochester, New York’s ACT program stated the
program helped them understand their children’s feelings related to the divorce, led to a decrease in
conflict between parents especially on child-related issues, decreased their desire or need to litigate,
increased effective parenting practices, and improved their children’s adjustment to divorce.114
A study of parent education programs in Arizona, New Jersey, Connecticut, Oklahoma and
Michigan also demonstrated a high rate of party satisfaction and success.115
The majority of
108
Matthew Goodman, Darya Bonds, Irwin Sandler, and Sanford Braver, Parent Psychoeducational Programs and
Reducing the Negative Effects of Interparental Conflict Following Divorce, 42 FAM. CT. REV. 263, 269 (2004).
109
Id.
110
Id.
111
Id.
112
Goodman, supra note 118, at 380. The program in Maryland was entitled, “Making it Work.” It first began as a
voluntary program in 1992 and became mandatory in 1993.
113
Id.
114
Id. at 381.
115
Id. (citing Nancy Thoennes & Jessica Pearson, Parent Education in the Domestic Relations Court: A Multisite
Assessment, 37 FAM. & CONCILIATION CTS. REV. 195, 215 (1999).
15

participating parents suggested the programs become mandatory and noted that since the program’s
completion, they have fought less over decisions regarding their children.116
Approximately seventy
percent of participating parents claimed the program assisted them in becoming more sensitive to
the children’s needs, helped their children cope with the divorce, and assisted them in making
visitations less hostile.117
However, it has been suggested that the findings do not conclusively show that education
programs promote better child and parent adjustment or reduce conflict and litigation.118
In
addition, it has not been determined whether or not to continue to mandate attendance if domestic
violence is a factor. Ten states mandate that both parents attend the session despite a domestic
violence issue, while thirteen states provide an “opt-out” for domestic violence victims.119
Advocates for mandating attendance for both parents claim parent education programs may benefit
the victim by improving his or her communication skills.120
Arguments against mandatory
attendance are that it is dangerous to encourage communication and cooperation if these behaviors
lead to a greater amount of abusive interactions and may serve to increase domestic violence.121
Orange County, Florida recognized that divorcing families are not only going through a
legal process, but are also changing family roles, renegotiating parenting responsibilities, and
redefining their family identities.122
To assist in providing families with emotional support,
information and skill-building opportunities, Orange County implemented the Court Care Center for
Divorcing Families (CCCDF) to make divorce work more effectively by decreasing conflict,
promoting emotional stability, offering timely interventions that will teach parents skills and
116
Id.
117
Id.
118
Janet R. Johnston, Building Multidisciplinary Professional Partnerships with the Court on Behalf of High-conflict
Divorcing Families and their Children: Who Needs What Kind of Help?, 22 U. ARK. LITTLE ROCK L. REV. 453, 468
(2000).
119
Id. at 383.
120
Id.
121
Id.
122
16

positively change coping behaviors, providing valuable parenting strategies, and reducing the
inappropriate use of court resources.123
Parties are referred to CCCDF at the discretion of a domestic court judge or other approved
agent. 124
However, this typically occurs when the action is driven by emotional issues, parents are
unwilling or unable to resolve minor issues, parents engage their child in their conflict, and when
alternative dispute resolution has been attempted and failed.125
After the parties are referred to the
Center, a staff counselor conducts a free confidential assessment of each family member to screen
for issues such as substance abuse and domestic violence, determine their level of conflict, and
assess their emotional and educational needs.126
The families are then advised to attend the mandatory parent education program or placed
into one of four programs: Cooperating for Your Kids, Focus on the Children, Crisis Intervention,
and Family Therapy.127
Each program varies in length, goal, and cost. For example, Cooperating
for Your Kids lasts eight weeks and is primarily parents without psychological or personality
disorders that are involved in mild to moderate degrees of conflict and unable to effectively co-
parent.128
The program takes place inside the courthouse after business hours to reduce costs. 129
If
a family is placed in Family Therapy, the Center refers parents to mental health counselors, social
workers, marriage and family therapists, or psychologists130
and requires parents to either pay
themselves or utilize personal insurance.131
The programs have received positive results. Cooperating for Your Kids has demonstrated
an increase in agreement regarding parental responsibility and decreased parental conflict in front of
123
Id. at 147.
124
Id.
125
Id.
126
Id. at 147-149.
127
All individuals with children who are parties to a divorce in Florida are mandated to attend one education session. Id.
at 153.
128
Id. at 148, 153.
129
Id. at 153.
130
131
Id. at 153.
17

children.132
Focus on the Children increase parental communication, decreased parental conflict,
and improved understanding of each other’s needs and feelings.133
However, CCCDF has been
criticized for only providing services to families that have already gone through high-conflict
litigation. One family stated if they had had the class earlier, years of fighting probably could have
been saved.134
III. The Proposed Solution
In order to decrease the detrimental effect of litigation on divorcing families, reduce the
amount of improperly used judicial resources, decrease the total cost of divorce, and make the
process of divorce more efficient, Philadelphia County should mandate a comprehensive dispute
resolution program. This program should be primarily based off of the multidoor courthouse, 135
Court Support Services Division,136
and the Court Care Center in Florida. 137
Prior to litigation, and as a condition to receiving a court hearing, individuals seeking a
divorce must meet with a sufficiently trained intake counselor similar to that described in the triage
programs. By mandating this occur prior to litigation, unnecessary and improper litigation that may
have been used as an improper outlet for unaddressed emotional issues related to divorce is
prevented and children are protected from involvement in a high conflict situation. This session
should be centered on the schedule of the parties as opposed to around that of the court. For
example, this session may be completed with a counselor online and intake counselors should be
available for weekend appointments.
The intake counselor should first screen the parties for domestic violence issues and execute
a comprehensive assessment of the parties and their family situation. The counselor should then
132
Id. at 157.
133
Id. at 158.
134
Id.
135
See Stempel, supra note 73, at 361-365.
136
See Salem, supra note 9, at at 752.
137
See Homrich, supra note 12, at 141.
18

educate the parties on the emerging concepts of collaborative law, cooperative law, mediation and
arbitration as well as discuss the litigation process. This should include an accurate description of
the positive and negative attributes of each procedure in addition to a discussion regarding the
realistic financial and emotional effects of litigation. In addition, parties should be advised of local
firms that practice collaborative and cooperative law as well as how to approach mediation or
arbitration. If children are involved, a discussion should be held regarding their best interests and
how they will be impacted by each procedure.
The intake counselor should recommend which process he or she feels best fits the needs of
the family, but the decision should ultimately be up to the parties. If both parties cannot agree on a
process, the counselor should have the ability to mediate this issue. 138
In addition, divorcing
families should be provided with information regarding support services such as individual and
group counseling, financial counseling, job counseling, job training opportunities, housing
assistance, respite care, and educational programs on subjects such as conflict resolution skills for
parents.139
While a triage program is ideal, other less expensive and less dramatic options are available
that would allow Philadelphia to improve the efficiency of the divorce process and decrease the
detrimental effect of litigation on divorcing families. For example, Philadelphia could implement a
mandatory parent education program for divorcing families.140
This program could educate parents
on divorce, custody, and support litigation and advise parents on the availability of alternative
dispute resolution processes. The program instructor should provide an accurate description of the
positive and negative attributes of each procedure including litigation and supply literature
regarding local firms that practice collaborative and cooperative law, and how to approach
138
See Firestone, supra note 3, at 212.
139
Id. at 211-212 (citing Alicia M. Homrich et al., Program Profile: The Court Care Center for Divorcing Families, 42
FAM. CT. REV. 141 (2004)).
140
See Homrich, supra note 12, at 146.
19

mediation or arbitration. In addition, the instructor should provide information regarding various
support services such as skill development opportunities.141
The instructor should discuss the children’s best interests and how they will be impacted by
each procedure. The program should demonstrate how conflict negatively affects children in order
to increase parental sensitivity to their children’s needs, reduce conflicts, improve parenting skills
and promote more cooperative approaches to parenting.142
Through videos and vignettes, parents
should view interparental conflict from a child’s perspective and learn beneficial conflict resolution
skills.143
Another option would be for Philadelphia to implement a mandatory mediation program and
require all parties filing for divorce, custody, and support to first attend one mediation session.
Philadelphia County, like Utah, could require good faith participation in at least one session of
mediation after a divorce or custody complaint is filed if any contested issues remain.144
Philadelphia should also implement a short screening process prior to mediation in order to make
certain domestic violence is not an issue.145
This program could develop incrementally and begin
with mandating only custody mediation because custody mediation already exists in Philadelphia,
whereas it does not for divorce or support disputes.
It is necessary to determine how each program could be funded. Other jurisdictions have
funded their programs in different ways. Florida requires parties to attend mediation and pay for the
process themselves within a certain fee range, but does allow for some subsidized services for
indigent or insolvent parties.146
Some courts in Pennsylvania partially fund mediation through a
141
See id. at 211-212 (citing Alicia M. Homrich et al., Program Profile: The Court Care Center for Divorcing
Families, 42 FAM. CT. REV. 141 (2004)).
142
See Pollet, supra note 11, at 377. However, Pollet states that cooperative parenting should not be encouraged when
domestic violence is an issue. Id.
143
See id. at 377 (citing Matthew Goodman et al., Parent Psycho educational Programs and Reducing the Negative
Effects of Interparental Conflict Following Divorce, 42 Fam. Ct. Rev. 263, 268-69 (2004).
144
Ayrapetova, supra note 10, at 424.
145
Id. a 418.
146
Id. at 395; FLA. STAT. ANN. § 44.102(5)(B)(WEST 1998).
20

filing fee surcharge.147
Other courts fund mediation through a sliding fee scale.148
Oregon charges a
dispute resolution surcharge when parties file a civil action, suit or proceeding including appeals.149
This charge is collected from the plaintiff or petitioner at the time of filing and the defendant or
respondent at the time of appearance.150
In Utah’s mandatory mediation program, the parties are
required to split the cost equally.151
Philadelphia County could train current court employees such as custody evaluators to act as
intake counselors, parent education instructors, or mediators. 152
It is possible to have a successfully
run program with few compensated employees to coordinate training and scheduling issues and a
multitude of volunteers.153
Volunteers from the community could act as intake counselors, parent
education instructors, or mediators. Scholar Carol King states, “The volunteers’ availability and
their positive attitudes tend to lead toward a program just as successful, if not more so, than one in
which mediators are paid.”154
It would be beneficial to have a diverse group of adequately trained volunteers selected
based on their maturity level, life experience, and ability to understand family law.155
Diversity
would be beneficial because it would decrease the likelihood of language and cultural barriers
between volunteers and divorcing families. 156
In conclusion, the problems facing Philadelphia County presented by the current system of
adversarial litigation show no signs of subsiding. Negative attributes associated with adversarial
litigation can be greatly decreased if not completely eliminated by new approaches to dispute
147
23 PA. CONS. STAT. ANN. §§ 3901-3904 (West Supp. 1998)(stating that local courts have discretion to establish
mediation programs and that where such programs are adopted, they may be partially funded by filing fees); E.D. PA.
LOCAL R. 6.02.53.2 (stating the same information).
148
149
OR. REV. STAT. §36.170(1).
150
Id.
151
Ayrapetova, supra note 10, at 418; H.B. 4, 2005 LEG., 56TH
SESS.
152
Id. at 462.
153
Id.
154
Id. at 462.
155
Id. at 465.
156
Id.
21

resolution in the context of divorce, custody and support. By shifting the focus from a family’s
legal rights to their emotional and educational needs, interfamily conflict will decrease and the
detrimental effect of litigation will be reduced. A divorcing family should be provided with
multiple interest-based and cost-effective rights-based dispute resolution methods in order to choose
the method that best fits their needs. Encouraging families to utilize alternative dispute resolution
processes will make divorce more efficient, less expensive, less time consuming than litigation and
less frustrating than litigation. Philadelphia County should follow the lead of many other
jurisdictions and attempt to resolve the problems presented by traditional litigation by implementing
a new comprehensive, court-annexed dispute resolution program focusing on the emotional and
educational needs of divorcing families.
22

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