by Gorkem Celik
, 16.06.25
These days, a vast majority of divorcing couples resolve their child custody disputes outside of court, either through formal arbitration or mediation procedures or via informal negotiations between themselves. These private agreements, being generally more flexible than court orders, tend to better accommodate the individual needs and wants of the parents. A parent may not necessarily seek more custodial rights and obligations, especially when facing new financial and psychological circumstances after a divorce.
In recent research, professors Nejat Anbarci and Gorkem Celik, from Durham University and ESSEC Business School respectively, argue that the prevalence of out-of-court settlements does not render the courts' legal standards irrelevant in reaching a proper custody resolution. It is important for a parent entering mediation to know that they have the option to forego mediation in favor of a court ruling based on these standards.
The research challenges conventional wisdom suggesting that parents are more likely to reach an out-of-court agreement if they fear an undesirable court ruling. Nejat Anbarci and Gorkem Celik’s analysis suggests that the out-of-court procedures would be more effective when the court rulings on custody are not very different from what the parents themselves are expected to prefer.
The key to understanding this counterintuitive finding is recognizing that parents are privately informed about their preferred custodial rights and obligations. A judge or mediator cannot determine whether a parent wants full custody or joint custody. However, unlike a judge, a mediator can leverage a parent's willingness to negotiate custodial rights in exchange for receiving a higher share of marital assets, making mediation potentially more responsive to parental preferences.
A successful out-of-court resolution must aim for two objectives. First, it should encourage parents to relinquish their right to a court ruling and opt for mediation. While the threat of a harsh court ruling might facilitate this, the process should also motivate parents to candidly express their custody preferences rather than manipulate them for a better outcome. Anbarci and Celik’s research highlights that a mediator is more likely to succeed when courts prescribe custody arrangements favored by the parents, especially those most reluctant to engage in mediation.
Further reading
Anbarci, N., & Celik, G. (2025). Ideal Default For Resolving Disputes Efficiently. International Economic Review, 66(1), 201-221.
