The Family Mediator’s New Tool

Introduction

According to the National Council on Alcoholism and Drug Dependence (NCADD), alcohol is the most commonly used, and most addictive, mood stabilizer.  So prevalent is its use that the NCADD estimates 17.6 million people – or one in every 12 adults – suffer from alcohol abuse or dependence. (ncadd.org) In addition, numerous studies have found that while alcoholics are just as likely to get married as non-alcoholics, their divorce or separation rate is at least four – FOUR – times that of the general population. (Clarke-Stewart and Cornelia Brentano, Divorce: Causes and Consequences, Yale University Press, 2006)  Given those figures, you as a family mediator will undoubtedly have to deal with the subject of alcohol, either in the actual session itself with one of the parties under the influence, or as a topic of negotiation when child custody is an issue.  Accordingly, the premise of this article is that every family mediator should be equipped with their own portable alcohol detection device, and preferably one that comes with distant monitoring capability.

Mediation Screening

Do a search making your query along the lines of, “When to not mediate,” and you’ll find a plethora of articles discussing situations that can potentially undermine the family mediation process by minimizing the parties’ ability to make informed decisions, or to exercise the power to complete those decisions.  Not surprisingly, the overwhelming majority of the types of situations discussed involve physical or emotional abuse amongst the parties.  Do another search query just with the words “mediate” and “screening,” and you’ll also find plenty of articles that discuss excellent programs from a variety of jurisdictions used to screen for – once again – domestic abuse and violence, which the family mediator can extrapolate and use to determine whether or not mediation is appropriate.

What you’ll find extremely difficult to locate, however, are articles dealing with alcohol abuse or dependence, and its effect upon a party’s ability to make reasoned decisions and exercise sound judgments, as well as not upsetting or interfering with the other mediating party’s ability to do the same.  More importantly, you’ll find the complete absence of any article discussing any screening tool available to family mediators that is specifically designed to identify alcohol abuse or dependence, much less screen for the actual presence of alcohol in the parties prior to a mediation session.  But why would we need such a tool?  Why would we want to screen for alcohol anyway?

First and foremost, Psychology Professors Alison Clarke-Stewart and Cornelia Brentano note in their book Divorce: Causes and Consequences (Yale University Press, 2006) that not only is there a strong correlation between alcohol abuse and legal and financial problems, job loss, and sexual dysfunction, but also a powerful link between alcoholism and domestic violence and abuse.  (Ibid., emphasis added).  In other words, by screening for substance abuse, you’re also screening for domestic violence and abuse.

Another type of legal disagreement that continues to be regarded as unsuitable for mediation are child custody disputes between “high conflict” couples.  In short, a “high conflict” couple cannot resolve their differences in either a business-like manner, nor in a friendly way. (Jessica J. Sauer, Mediating Child Disputes for High Conflict Couples: Structuring Mediation to Accommodate the Needs and Desires of Litigious Parents, 7 Pepp. Disp. Resol. L.J., Iss.3, 2007)  Several conditions appear to be quite common among high conflict couples, the presence of which may cause custody negotiations to escalate alarmingly.  Notably, these include, among other things, being a victim or perpetrator of domestic violence, and a history of substance abuse (Ibid., emphasis added)

Finally, screening for the presence of alcohol is just plain common sense, both for your own protection and safety, as well as the successful operation of your mediation practice.  Reflect on your past mediations and ask yourself how many parties did you suspect had a few cocktails prior to a scheduled family mediation session “just to take the edge off,” but which you considered to be the most disruptive and energy depleting sessions.  Ask yourself how many of your scheduled meditations were either canceled at the eleventh hour, or one of the parties simply didn’t show, because unbeknownst to you he or she was physically or mentally incapable of attending due to severe intoxication.  Reflecting on your family mediations involving child custody, how many involved a spouse fearful of the other spouse having possession of the children because of the allegation of alcohol abuse or dependence.  Again, given the prevalence of alcohol abuse and dependence, and the volatility that alcohol can add to an already stressful situation, to remain safe and have a productive mediation session, the question really is not should we perform alcohol screening, but how do we screen for it?

The “Breathalyzer”

In 1938, the first alcohol detection device to be used for roadside alcohol detection was invented and referred to as the "drunkometer." The device (we’re using that term loosely) worked by an officer having a suspected drunk driver inflate a balloon, after which the officer would then release the air from the balloon into a chemical solution that would change colors to a certain degree, depending on the intoxication level of the driver.  Needless to say, test sensitivity and specificity was almost comical.

It wasn’t until 1954 that Robert F. Borkenstein invented what was to become known as the “Breathalyzer.”  Drawing on the basic principles of photography, Borkenstein created a simple device that consisted of two photo cells, two filters, and about six wires. Though this rudimentary technology worked far better than the drunkometer, there still were innumerable factors that could make the results invalid.  Fortunately, as technology advanced through the years, so did the Breathalyzer.

By the mid-1980s, the Breathalyzer, as created by Borkenstein, had evolved into using infrared spectroscopy, which pinpointed molecules according to the way they absorbed light, thereby creating an electrical impulse that was measured and processed by a microprocessor into a blood alcohol concentration (BAC) level. Unfortunately, despite technological advances, the devices were so cumbersome, and so expensive, that infrared (IR) technology was primarily limited to law enforcement facilities.

Fortunately, with the rapid technological advances in semiconductor technology (and significantly reduced production costs), breathalyzers were soon able to be produced into small, inexpensive, handheld devices.  In these devices, when alcohol came into contact with the surface of the semiconductor, an electrical current was produced that could then be translated by an even smaller microprocessor into a BAC level.  Despite their portability, however, semiconductor devices had severe drawbacks, including inaccuracy, unreliability, and untrustworthiness.  In fact, no semiconductor based device has ever been approved for court evidentiary use by any State Law Enforcement Agencies or the U.S. Department of Transportation.

As a result of the limitations in both IR and semiconductor technology, alcohol detection manufacturers began searching for an alternative.  And one technology, advanced through the years by NASA, was electrochemical cells, otherwise known as “fuel cells.”  Here, the breath is directed into a micro fuel cell with platinum (high conductivity) electrodes where alcohol is oxidized, thus generating an electrical current. The higher the alcohol content of the breath, the greater the output current of the fuel cell, and by precisely measuring the current produced in the fuel cell, an extremely accurate measure of breath alcohol content (BrAC) is recorded.

“Soberlink”

The premier manufacturer of fuel cell equipped BrAC devices is Soberlink.  (Soberlink.net)  I say premier not just because of its accuracy, reliability, and trustworthiness, but also because of its dual application in family mediation.  First, for the safety and protection of the mediator and the parties, this device can be used by the mediator prior to the beginning of a session as a tool for ensuring that the parties are, in fact, sober.  Second, it can also be shown and demonstrated to the parties as a means to the end of negotiating child visitation and possession.  This is because the device allows the “accusing party” to distantly monitor the “accused party” during actual possession of the children.  Do what, you say?  This is where it gets fascinating.

Soberlink is equipped with some amazing features, one of which is an infrared, high resolution camera that takes a picture of the testing party, which is analyzed by an Automatic Facial Recognition program (yeah, it marks the face with all those little dots just like in the movies) to ensure the identity of the individual submitting the test.  It’s also equipped with GPS that transmits the location of the device at the time of the test submission.  Finally, all of this information (test results, picture, and location) is transmitted, wirelessly or by wifi, to Soberlink’s web portal, which is accessible by the other spouse within 60 to 90 seconds after the test is submitted! And in the event the non-testing spouse doesn’t have internet access, the test results can also be transmitted in real-time to the non-testing spouse by email or text message!

Conclusion

Alcohol detection is no longer limited to the criminal justice community and about catching the drunk driver.  Nor does alcohol detection still involve guesswork.  The portable alcohol detection and monitoring device of today is a professional, precision device that is now available to, and can now be used by, the family law mediation community.  This is huge.  Think about it.  It can be used as a screening tool for the protection of the mediator and all individuals attending a “high conflict” family mediation session.  In family law matters not considered “high conflict, if the ingestion of alcohol is suspected, it can still be used to gauge whether or not the judgment of the parties is intact, and that the parties can make informed decisions and exercise those decisions.  Finally, in child custody matters, it can be used as a negotiating tool to allay the accusing party’s suspicions, provide peace of mind to the non-testing party that the safety of the children can be assured, and empower both parties to trust one another once again.  Quite frankly, few investments in the family mediation arena have a higher potential for screening matters appropriate for mediation, providing safety and security, and ensuring a productive and successful mediation outcome for parents and children alike than the use by the family mediator of a tool like the Soberlink alcohol breath detection and monitoring device.  Every family mediator should have one.

                       

Charlie Mulvey

Charlie Mulvey received his J.D. degree from the University of Arkansas School of Law - Fayetteville.  After twenty years of practicing in Arkansas as both a litigator and firm owner of a multi-state administrative law practice, a family relocation brought him to Texas, which he interpreted as a sign for… MORE >