The Importance of Restorative Practices in Family Law

In Marriage Story, Alan Alda’s character wisely told his client, “I want you to know that eventually this will all be over, and whatever we win or lose, it’ll be the two of you having to figure this out together.”[1] Alda’s character referenced the contentious nature of divorce. Divorce proceedings often pit parties against each other, culminating in chaotic and hostile situations that often have no winner.[2] Children whose parents divorce, especially in high conflict proceedings, suffer psychological trauma that can have a lasting impact on them.[3] Tumultuous divorce proceedings not only have a negative impact on the children, but also the parties themselves.[4] Its adversarial nature heightens the tensions. The fight sometimes goes on for years, even after the divorce is finalized with post-decree motions tying up the family’s finances and lives even longer. Eventually, the court pulls out. The family is left alone, picking up the pieces of their old lives and attempting to reassemble them into some new normal. This new normal, however has been built on the harm done by the adversarial process.

Restorative practices focus on repairing harms caused by the actions of people.[5] It frames harm as “a violation of people and interpersonal relationships.”[6] That harm or violation of another person creates obligations to “mak[e] amends or [put] things right.”[7] In order to put things right, all persons involved need to be given the space and opportunity to heal.[8] Restorative practices can take many different forms,[9] ranging from a full peace circle to a restorative chat to even basic self-care. Almost anything that facilitates healing from the harm or violations fits into the restorative framework. The flexibility of restorative practices makes it a great fit for the family law setting where all families are different and there is no one size fits all approach. In the limited amount of research done with restorative justice in family law, the results have shown success.[10]

Peace circles in particular can be used to “resolve and transform conflicts,” thus leading to healing.[11] Circles provide a safe, confidential, and value-driven space for all involved parties [12]to communicate and reflect on the reasons for and the consequences of the harm.[13] Members of the circle include the disputing parties and any stakeholders – family members, friends, spouses, or even concerned members of the community.[14] Stakeholders often provide needed perspectives outside of the two parties, the extent and nature of which depends on the circle. Circles use a talking piece, an object passed around the circle to ensure that only one member of the circle speaks at a time.[15] The talking piece gets passed around the circle, with each person in the circle getting a chance to speak, reflect, and share on the questions that the circle keepers pose.[16]

In Cook County, parties must use mediation to settle disputes over allocation of parenting time and responsibilities.[17] Mediation, however, might not be the best fit for every family.[18] Mediation assumes that all parties have equal bargaining power, which might not be the case in a family law setting.[19] For example, if one parent tends to cave to the other parent’s demand to “buy peace,” it raises concerns about that parent conceding “important points involving the child’s best interest too readily.”[20] Mediation also requires “little [to] no separate, face-to-face preparation with individual participants before [mediation].”[21] This can be especially problematic in a contentious divorce where parties have vastly different expectations or the power imbalance exists. Screening the parties ensures that all parties in attendance have the same expectations and are fully committed to the restorative process.

Mediation also takes a neutral approach, especially by the mediator.[22] In a divorce case, whether or not it involves children, emotions tend to run high. Divorce represents the culmination of a breakdown of a family unit, and mediation might not allow for the space for an understanding facilitator. Additionally, mediation “tends to be outcome-focused.”[23] While the outcome of a divorce or child custody case is important, there is much more beneath the surface. To bring us back to Alan Alda’s character, in the end, the family must pick up the pieces and continue with their lives in the best way possible. The relationships, no matter how strained and broken, will still remain, especially when the case involves children.

Restorative practices, on the other hand, can uniquely address the problems that arise with a mediation approach. Restorative practices focus on repairing relationships, which in turn will restore peace to the family even though the marriage is over.[24] Parents, especially, have an interest in repairing and maintaining the relationship. They must continue to coparent after the court enters the order for dissolution. They can shield their children from some of the psychological trauma discussed above by maintaining a functioning family, which can only be done if the relationships have been repaired.

Additionally, most marriages end because of “growing apart” and or communication issues,[25] so an open space for communication becomes vital in the process. In a restorative circle, every party gets the chance to be heard and feel understood.[26] Because only one party can speak at a time, and only the party with the talking piece,[27] the other side must listen until their ex-spouse or child’s other parent has finished speaking. This also helps mitigate some of the imbalance concerns because nobody may speak over anyone else in circle. It lessens the concern that one party might feel coerced by the other party into giving more than what is in the best interest of the child. Parties can spend longer “crafting solutions” than they would be able to in court, and, with structure in place for speaking, parties can collaborate to come to a solution that works for the entire family.[28] In the end, the family can take this solution and go forward as a family, confident that everyone was heard and the solution is in the best interest of their family.

Typically, mediation only includes the parties and a mediator, but restorative circles allow for a more expansive circle of stakeholders.[29] The stakeholders work with the parties to “identify and address the harm done…and the needs of all involved.”[30] In some instances, where deemed appropriate by everyone involved, the stakeholders may even include children.[31] Family law already often includes the use of experts for particular aspects of the case.[32] Circle stakeholders allow these experts, such as psychologists, to be included in the process and voice their concerns, opinions, and thoughts. Guardian ad litems or child representatives could also be brought into the circle, as could grandparents, other family members, or religious leaders. Anyone who knows the family and has an interest in seeing the issues resolved peacefully could be invited into the space to help the family come up with a solution, making it a very different process than mediation or a court proceeding.

Restorative justice offers a promising alternative to more traditional means of settling family law issues. Its process and use of stakeholders allow for families to work through problems together, with those most important to them, instead of using the adversarial court processes. Restorative practices focus on repairing the harm, opening lines of communication, and rebuilding healthy relationships that will hopefully continue long after the parties come to a settlement or solution. In the end, after the court order is entered, the family will need to “figure [it] out together,” and restorative practices give families the building blocks to start.

Restorative justice in domestic violence situations is beyond the scope of this blog post.

[1] Marriage Story (Heyday Films 2019).

[2] See Susan Swaim Daicoff, Families in Circle Process: Restorative Justice in Family Law, 53 Fam. Ct. Rev. 427, 429 (2015) (describing the “adversarial, hostile litigation between divorcing parents”).

[3] See H. Patrick Stern et al., Professionals’ Perceptions of Divorce Involving Children, 11 U. Ark. Little Rock L. Rev. 593, 594 (2000) (“[T]here is evidence that children of divorce often suffer psychological trauma.”); Kendra Randall Jolivet, The Psychological Impact of Divorce on Children: What is a Family Lawyer to Do?, 25 Am. J. of Fam. L. 175, 176 (2012) (noting that while most children of divorce have little long-term negative psychological effects, the way parents handle divorce could cause this damage).

[4] See Shelby B. Scott et al., Reasons for Divorce and Recollections of Premarital Intervention: Implications for Improving Relationship Education, 2 Couple Family Psychology 131, 132 (2014) (“Divorced individuals, compared to their married counterparts, have higher levels of psychological distress, substance abuse, and depression.”).

[5] Howard Zehr, The Little Book of Restorative Justice 40 (2002).

[6] Zehr, supra note 5, at 17.

[7] Zehr, supra note 5, at 18.

[8] Zehr, supra note 5, at 18.

[9] See Zehr, supra note 5, at 3 (discussing different techniques of restorative justice).

[10] Laurie S. Kohn, Engaging Men as Fathers: The Courts, The Law, and Father-Absence in Low-Income Families, 35 Cardozo L. Rev. 511, 548 (2013).

[11] Zehr, supra note 5, at 3.

[12] See Zehr, supra note 5, at 53 (discussing the “wide-ranging” nature of circles).

[13] See Lynette Parker, Circles, Centre for Justice & Reconciliation, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-3-programs/circles/#sthash.rbax9RAj.dpbs (last visited Feb. 9, 2021) (discussing the purposes of a circle).

[14] See Zehr, supra note 5, at 26.

[15] Zehr, supra note 5, at 52.

[16] Zehr, supra note 5, at 52 (“One or two ‘circle keepers’ serve as facilitators of the circle.”).

[17] Alison G. Turoff, 94 Ill. B.J. 546, 546 (2006).

[18] See Mediation in Divorce Cases re Custody (Parental Responsibility) and Parenting Time, Gitlin L. Firm, https://gitlinlawfirm.com/family-law/divorce/mediation-in-divorce/ (last visited February 10, 2021) [hereinafter Mediation in Divorce Cases] (discussing the cases where mediation might not be the best fit).

[19] Id.; Howard Zehr, Restorative Justice, mediation and ADR, Zehr Institute for Restorative J. Blog (Aug. 13, 2010), https://emu.edu/now/restorative-justice/2010/08/13/restorative-justice-mediation-and-adr/.

[20] Mediation in Divorce Cases, supra note 18.

[21] Zehr, supra note 19.

[22] Zehr, supra note 19.

[23] Zehr, supra note 19.

[24] See Sophia H. Hall, Restoring the Peace, 21-APR CBA Rec. 30, 31 (2007) (“The restorative justice approach addresses how relationships can be restored or built and peace returned to the community.”).

[25] Scott, supra note 4, at 132 (“Within a sample of divorcing parents…the most endorsed reasons for divorce from a list of possible choices were growing apart (55%) [and] not being able to talk (53%).”).

[26] Parker, supra note 13.

[27] See Michael B. Hyman & Martha A. Mills, The Virtuous Circle, 108 Ill. B.J. 38, 41 (2020) (discussing the function of a talking piece).

[28] See Daicoff, supra note 2, at 429 (discussing the benefits of restorative justice over a traditional court system).

[29] Zehr, supra note 5, at 11.

[30] Hall, supra note 24, at 31.

[31] See Hyman & Mills, supra note 27, at 40 (stating that children may partake in a circle).

[32] Neal Raymond Hersh, Adapting to Today’s Family Law Challenges, Aspatore, June 2011, at 4, 2011 WL 2547794.