Family Mediation after Hendershott: The Case for Uniform Domestic Violence Screening and Opt-In Provision in Montana

Abstract

In Hendershott v. Westphal, the Montana Supreme Court held that § 40-4-301(2) of the Montana Code Annotated absolutely bars mediation in family law cases involving domestic violence. Yet neither the Court nor the statute prescribes a method by which to screen for such cases. In this article, the author argues that a uniform, statewide screening method is the only way by which to implement this policy. The author also argues that Hendershott should be interpreted narrowly and Montana should allow parties to opt in to mediation and other forms of alternative dispute resolution. The Court’s understanding of domestic violence is outdated: its opinion equates domestic violence with only one type of abuse — the stereotypical case involving a pattern of violent or potentially violent coercive control. Family law cases that do not involve such a pattern may be appropriate for mediation and alternative dispute resolution.