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Mont. L. Rev.


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 The Court's understanding of domestic violence is outdated: its opinion equates domestic violence with only one type of abuse -- the stereotypical case involving a pattern of violent or potentially violent coercive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.

Part II summarizes the Court's opinion in Hendershott. Part III discusses a survey the author conducted of Montana district court practices regarding their use of mediation in family law cases. Part IV addresses questions raised by Hendershott and outlines general features of a model screening method. Part VI makes the case for an opt-in provision and concludes that an absolute bar is founded upon an outdated concept of domestic violence and idealized view of litigation.