The Conciliation Courts movement began in Los Angeles. The California Conciliation Court Act, which was enacted in 1939, permitted the judge in any court in the State to establish a Conciliation Court. The mission of the Conciliation Court was primarily to preserve families by providing means for the reconciliation of spouses.
The Los Angeles Conciliation Court operated with lukewarm support from the bench and bar and at least two attempts were made to repeal the Conciliation Court legislation.
It was not until 1954, when Judge Louis H. Burke was assigned to the Los Angeles Conciliation Court that its function took on a new perspective and impetus.
Judge Burke took a year off the bench in order to work with couples as he trained with a seasoned conciliation counselor and learned about effective approaches to promoting reconciliation. During his tenure as a conciliation counselor, Judge Burke formulated a Reconciliation Agreement that would be personalized to the couple, with both spouses signing it, providing them with an operating agreement as a guide for restoring their relationship.
Judge Burke was appointed to the California State Supreme Court a few years later, which meant he had to give up his involvement with the conciliation work that he had grown to love.
He was one of the outspoken voices opposed to the new model “no-fault” divorce law drafted by the Uniform Law Commissioners in 1969. He even warned them that they were promoting a “registration” type of divorce that did not belong in the courtroom.
Conciliation Court services could be requested by couples. Court-referrals would also be ordered by the judge at an ‘Order to Show Cause Hearing.’ Sometimes this was the preferred way to get couples into services because it “saved face” for those who were too angry to agree to attend on their own. The first meeting was called a Conciliation Conference and operated like an intake session. At that point, the couple could consent or decline to attend further meetings. Those that wanted to receive further services would file a Petition for Conciliation.
Records showed that about sixty per cent of couples that filed Petitions for Conciliation would reconcile. One year later, three out of four of these reconciled couples would still be together.
Judges were encouraged to be liberal in ordering couples to the preliminary conference at which the counselors could then explain their services.
In the early years, Conciliation Courts were limited only to California. Records from the 1963 publication of the movement – the Family Court Review – indicate there were Conciliation Courts operating in six different jurisdictions in California.
In 1964, Conciliation Courts were established outside of California, in Arizona, Montana and Missouri. In 1965, Oregon came online; then Nebraska, Illinois, and Michigan in 1966; Hawaii and North Dakota, and Wisconsin in 1968; Alaska in 1969; Indiana in 1971; Washington 1972; Alberta, Canada in 1973; and Minnesota in 1975.
The early work of the Conciliation Courts was different than that of family courts today. The work focused on reconciliation between husbands and wives instead of the prevailing work today of settlement agreements and custody evaluations. Emphasis was on helping couples to restore their relationships and to resolve marital disputes.
By 1970, family court services were shifting to the mission of “divorce with dignity.” The law was changing as well, with the new policy of “unilateral” divorce becoming established throughout the country. With this law-change, the work of the Conciliation Courts turned predominantly to mediation services and evaluations. Disdain for the emphasis on reconciliation services was growing with conciliation now shifting to mediation as the new service offered in family court. The courts became value-neutral on divorce, or even worse, promoted a public policy of family breakup since divorce petitions would never be challenged by a finding of facts or an inquiry into the reasons.
With the prevailing belief that “you can’t make people stay together,” the former mission of family preservation disappeared.
Looking back, the Conciliation Courts describe a time and place that is unfamiliar now. The movement back then to provide reconciliation services can be viewed as an early effort to build the “Marriage Hospital.” A growing array of treatments for ailing relationships were being tested. The “medicine” offered was primitive in many ways, but the “science” was steadily improving at the hands of motivated and dedicated judges. The demise of the Conciliation Court movement is an American tragedy but it was all-too-predictable, considering the revolutionary law-change that took place at the time.
No-fault divorce effectively derailed the conciliation court movement, because getting out of a marriage became a “sure thing.” The spouse that wanted out was assured of being able to exit. As a result, there was little countervailing pressure to work on the relationship since escaping it was a guaranteed outcome.
The courts turned into the enforcement-arm of the State’s new policy of “guaranteed” adivorce with judges implementing this new policy, whether they liked it or not. A few judges who denied the occasional divorce were chastised or edged out of office. For the spouse at the receiving end of a divorce, trying to preserve their intact family became impossible and if they tried to resist the State’s policy and the forces arrayed against them, they would be brutalized by the system instead of uplifted and encouraged.
Judy Parejko is a legal researcher and the author of Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry.