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In the Hawaii case of Baehr v. Lewin, (now titled Baehr v. Miike), 74 Haw. 645, 852 P.2d 44 (1993) the Hawaii Supreme Court ruled that the denial of marriage licenses to same sex couples was sex discrimination under the Hawaii Constitution and sent the case back to the trial court to determine if the State of Hawaii could provide any compelling state interests that might justify the discriminatory classification. On December 3, 1996, the Hawaii district court issued a ruling that there were no compelling state interests in denying same sex couples the right to marry. According to this decisions, same sex couples have the right to marry in Hawaii. The State of Hawaii is appealing this most recent trial court opinion to the Hawaii Supreme Court.
In anticipation of an opinion from Hawaii that could recognize same sex marriages, the 1996 Kansas legislature amended a Kansas statute by adding language that denied recognition to same sex marriages legally performed and recognized in other states. (This legislative action was taken late in the legislative session and in a manner that did not allow public testimony or hearing on the amendment.) See K.S.A. § 23-115. In addition, Congress passed the so-called "Defense of Marriage Act" which allows states and the federal government not to recognize same sex marriages lawfully performed in other states. These pieces of legislation are subject to attack under the full faith and credit clause of the United States Constitution if Hawaii or any other state recognizes same sex marriages.
The Kansas legislature also amended the marriage statute, stating marriage is between "a man and a woman." This language raises questions about who is a man and who is a woman, particularly in the context of intersex and transgendered individuals. Kansas also may have to deal with the issue of "same sex" marriages involving couples who were married prior to one of the members of the marriage having genital reassignment surgery.
Domestic partnerships have several different purposes. One is for the purpose of registering the relationship and this registration can be used as evidence of the couple's intent on forming an exclusive intimate relationship--ie. a marital-type relationship or a family. Such evidence may be helpful in challenging other laws that give rights to "spouses" or "family" members. For example, see Braschi v. Stahl Associates Co. 74 N.Y.2d 784, 543 N.E.2d 49 (1989) in which a New York court recognized two gay men as a family for purposes of rent control regulations. Another purpose involves domestic partnerships that are recognized by employers as conferring "spousal" benefits to employees' partners. Several corporations, universities and government entities recognize domestic partnerships for this purpose.
Some same sex couples have entered into their own "domestic partnerships" or contracts that state that each recognizes the other as having all the rights of a "spouse" and they confer upon each other all of the rights that would accrue to a lawful spouse. The legality of these contracts has not been ruled on, but it appears that these contracts could incorporate durable powers of attorney for health care, (K.S.A § 58-632), living wills (K.S.A § 65-28,101) and, if properly executed, wills upon death.
Until same-sex marriage are more widely recognized, several documents are necessary to give some of the "spousal" rights that would normally flow from being lawfully married. For example, if one is not married, one's legally recognized family remains that person's family of origin--in particular, the parents of an unmarried person. Same sex partners have no legal status without documents that specifically confer these rights to the partner. For example, see In re Kowalski, 478 N.W.2d 790 (Minn. App. 1991), in which Karen Thompson, the partner of Sharon Kowalski, had to litigate over 8 years to be named Ms. Kowalski's guardian after Ms. Kowalski suffered incapacitating injuries in an automobile accident. Originally the court named Ms. Kowalski's parents and then a stranger before it became apparent that the only individual willing to care for Ms. Kowalski who would not place Ms. Kowalski in institutional care (at an expense to the state) was Ms. Kowalski's partner, Karen Thompson. Durable powers of attorney for health care (K.S.A § 58-632) have become more prevalent given this case and the incidents of AIDS related deaths among gay men. (Durable powers of attorney for health care grant more rights than do the more limited "living wills"--K.S.A. § 65-28,101.) In addition, the partners should grant each other general powers of attorney for the management of property to prevent family members from "cleaning out" the partners' home and bank accounts during a partner's final illness or other incapacitating event. Finally, wills can transfer property upon death. It should be noted, however, that these documents do not grant the same rights as a spouse would have in the area of income and estate taxes, social security, immigration preference, workers' compensation, wrongful death benefits, health insurance coverage or housing benefits.
Contracts involving children--including issues of child custody, paternity and child support--are not binding on the courts. This is because the child is not a party to the contract and a parent cannot contract away the child's rights. The court decides issues involving children based on the "best interests of the child", which is an imprecise and nebulous concept. See Woods v. Chapsky, 26 Kan. 650, 40 Am. Rep. 321 (1881) and its progeny.
Under the parentage act, once a father is established, the father has rights to custody or visitation, obligations for payment of child support, etc. K.S.A. § 38-1111.
The only way the parental rights to a child can be terminated involuntarily is by court order in juvenile court in which the juvenile judge finds the parents unfit, K.S.A. § 38-1583(f). The only circumstances in which a parent can voluntarily terminate parental rights is to consent to an adoption, K.S.A. § 59-2118(b), or in case of men, become a sperm donor in a sperm bank.
A mother who wants no donor/father involved with child (only one legal parent)
Donors usually are medical students, who provide their medical histories and physical characteristics. (Check to make sure semen donor is checked regularly for AIDS related viruses and other infectious diseases. Some centers will not release frozen semen until the donor has been checked twice in a six month period following donation to make certain no HIV infection is present.) This method carries the least amount of legal hassles for the mother. The donor is unknown, although at some facilities the father can give permission to the child to have the child contact him after turning 18. The child is seen as child of the mother with no parental claims possible by the donor. Have a doctor do the insemination. Kansas statutes recognize the procedure, but state it in terms of husband and wife consenting to the procedure. "The consent . . . shall be executed and acknowledged by both the husband and the wife and the person who is to perform the technique, and the original thereof may be filed under the same rules as adoption papers in the district court of the county in which such husband and wife reside." K.S.A. § 23-130.
The mother has a go-between select a sperm donor. The go-between has the mother and donor sign waivers in which the donor waives rights to the child and the mother waives rights of support. If the identities are kept secret to the donor and the mother, this method is secure. However, in small communities, the identity of the donor and mother may become known and if the mother or father decides to assert rights, the law is not clear on how it would deal with this situation. No cases have been decided concerning the enforceability of the waivers. There always is a risk of transmitting sexual disease in this method.
Some women have used several donors at the same time--collecting sperm from several men, mixing it together before insemination. Waivers may be obtained from all the donors. Supposedly neither the mother nor the donor will know which sperm is responsible for fathering the child. However, current medical knowledge can now ascertain with 96% certainty which male is the father, and should a donor bring a paternity suit, he may be able to establish his paternity and have rights of a parent to the child. Also, this method substantially increases the risk of contracting a sexually transmitted disease because the sperm is coming from numerous men.
In this method the mother and donor know each other and sign waivers. The danger for a woman who doesn't want any involvement by the father is that the donor will know he is the father and he may assert his rights in a paternity action. Again, there is no case law on the enforceability of the waivers and the court easily could find the waivers unenforceable because "it is in the best interest of the child to have a mother and a father." For example, see Thomas S. v. Robin Y., 599 N.Y.S. 2d 377 (N.Y. Fam. Ct. 1993). Having the mother pay for the semen may make the waivers seem more like sperm bank arrangements, where the donors get about $35.00-50.00 per donation, but this doesn't guarantee the enforceability of the arrangement.
The book Sexual Orientation and the Law by Roberta Achtenberg and the National Lawyers Guild has a sample waiver and should be consulted before any form of artificial insemination is contemplated.
Right of sole custody if the court decides it is in the best interest of the child to live with the father. K.S.A. § 38-1121(d). The parent who has sole custody has the right to determine the child's education, religion, medical treatment, discipline, etc., to the exclusion of the other parent.
Right of joint custody with the mother. K.S.A. § 38-1121(d). Joint legal custody means that both parents have equal rights to determine education, religion, medical care, etc. Joint physical custody also means the child equally shares the parents' homes.
Regular visitation with the child if the mother has sole custody, or if the parents have joint custody, but the child is placed with the mother as the primary residential parent. K.S.A. § 38-1121(d).
Right of custody if the mother dies or becomes physically or mentally disabled.
Right to withhold consent to an adoption of the child by another person.
An obligation to pay child support. K.S.A. § 38-1121(c)
This situation involves a mother and donor/father assuming the roles of parents in separate households. Many persons involved in this arrangement have agreements written out concerning the nature of the arrangement. Parents in these arrangements can have the same types of disagreements as divorced parents concerning the issues involved with the child ie. appropriate medical care, discipline methods, education, religion, etc. Also, in a mobile society, the issue of one parent leaving the neighborhood, the school district or the state will raise issues of who will have custody. Even if parties contemplate and reach an agreement on all these various issues, the contract is not binding and if one of the parents brings the issue into court, the court can override any clause in the contract and order some other type of arrangement.
When a man wants to be a father without the involvement of the mother in the child's life, one option is a surrogate mother contract. In this case the father's sperm is used to impregnate a woman who agrees to have the baby and sign away her rights to the child to the father upon birth of the child. The major problem with the mother's agreement is that, other than when she agrees to consent to the adoption of her child or when she relinquishes her parental rights to an adoption agency or SRS, mothers cannot terminate their parental rights by contract.
Another risk involved in this method is the decision in the Baby M case, 109 N.J. 396, 537 A.2d 1227 (1988), in which the court struck down the surrogate contract as void because it violated public policy. Kansas has had surrogate arrangements, but none have been challenged in court. Also, legislation in other states that regulate surrogate contracts describe the contract in the terms of the father being in a marriage and his wife adopting the child as her own.
Legal effect of adoption--child is treated as the biological child of the adopting parents. The birth certificate is changed to show that adopting parent as the biological parent of the child. The old birth certificate is sealed, but the adopted person in Kansas has the right as "an interested party" to see the original birth certificate. K.S.A. § 59-2122. The child's birth parents become strangers to the child; however, the child still remains an heir of the birth parents. K.S.A. § 59-2118(b)
There are three different ways to adopt in Kansas--agency adoption, independent adoption and stepparent adoption. K.S.A. § 59-2112
Agency adoption--the child is placed with the adoptive parent by the agency, which does a home investigation of the family. Many agencies have restrictive policies, which could include not placing children in homes of single individuals or placing only "hard to place" children in single individuals' homes. These children are usually older, are in sibling groups or have some physical or emotional problem that prevents their easy placement. Also many religious agencies will place children only with members of that religion. SRS also places children for adoption, including placing children with single individuals.
Independent adoption--child is placed with the adoptive parent by the parent or parents of the child or a another third party, such as a doctor. Besides the home assessments (K.S.A. § 59-2134), these adoptions require the consents of the natural parents and a biological and social history of the child and medical records and birth certificate of the child. K.S.A. § 59-2130(a). These adoptions are used most often by individuals who would have a difficult time getting children through an agency because the parents are too old, or are single, etc.
Stepparent Adoption--the spouse of the biological parent adopts the child. This adoption requires the other parent to consent to the adoption or the other parent's consent is not required because the parent has failed to assume parental duties for at least two years prior to the filing of the adoption. K.S.A. § 59-2136(d).
"Any adult, or husband and wife jointly, may adopt any minor or adult as their child in the manner provided in K.S.A. 59-2111 through 59-2143, except that one spouse cannot do so without the consent of the other." K.S.A. § 59-2113. Consequently, any adult can adopt a child, even if he or she is not married.
In nonsteparent adoptions in Kansas, the petitioner must file with the court a home assessment by a court-designated social worker licensed to practice social work in Kansas or by a licensed child placing agency or SRS. In making the assessment the social worker is authorized to observe the child and contact the agency or individuals consenting to the adoption and confirm and if necessary clarify any genetic and medical history filed with the petition. The report filed with the court shall contain the results of the investigation of the adopting parents, the home and the parent's ability to care for the child. K.S.A. § 59-2132.
Only Florida and New Hampshire statutorily bar adoptions by gays and lesbians. Fla. Stat. Ann.§ 63.042; N.H. Rev. Stat. Ann. §170-B:4. The Florida statute was declared unconstitutional by a Florida trial court, but the Florida Supreme Court upheld the statute pending a new hearing on the equal protection issue. Cox v. Florida Dep't of Health & Rehabilitation Servs., 656 So. 2d 902, 903 (Fla. 1995). On the other hand, openly gay or lesbian adults have adopted children in the District of Columbia, Ohio and California. See M.D. v. C.J. Etc., 122 Daily Wash. Rep. (Wash. L. Rep.) 221 (D.C. Super. Ct. Jan. 7, 1994) and In re Adoption of Charles B. 552 N.E.2d 884 (Ohio 1990). Numerous gays and lesbians have adopted children in Kansas, but the status of the adoptive parents' sexual orientation was not raised in the adoption. For more general information, see William E. Adams, Whose Family is it Anyway? The Continuing Struggle for Lesbians and Gay Men Seeking to Adopt Children, 30 New Eng. L. Rev. 579 (Spring 1996) and Charlotte J. Patterson, Adoption of Minor Children by Lesbian and Gay Adults: A Social Science Perspective, 2 Duke J. Gender L. & Pol'y 191 (1995).
There are no state statutes that allow a same sex couple to adopt a child together. However, some states such as California have allowed this type of adoption by using the "best interests of the child" standard. For example, see Elaine Hersher, AIDS Child with 2 Lesbian Moms: How Couple Fought State for Adoption, San Francisco Chron., Nov. 27, 1987, at A8.
Thirteen states have allowed this form of adoption--Alaska, Washington, Oregon, California, Colorado, District of Columbia, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, Texas and Vermont. The main problem with this form of adoption is that, except in step-parent adoptions, the natural parents rights usually are cut off by the adoption. Obviously, this is not the desired result if the goal is to have two parents of the same sex. Courts have avoided this result by dealing with these cases as similar to stepparent adoptions in which the biological parent who is the partner of the adopting adult retains parental rights. In general see Suzanne Bryant, Second Parent Adoption: A Model Brief, 2 Duke J. Gender L. & Pol'y 233, 237 n.27 (1995).
Other partial options include:
Medical authorizations-the parent signs a medical authorization form for the partner to have authority to get medical treatment for the child and visit the child in the hospital.
Legal guardianship nominations in cases of incapacity or death of the parent--the parent executes a guardianship authorization designating the partner as the legal guardian of the child in cases of incapacity or death. The court does not have to honor this authorization, but it is better than nothing stated at all. Also the parent can set out a guardianship provision in his or her will.
Custody agreements that set out the rights and responsibilities of the parties toward the child including clauses concerning the rights of the parties if the partnership ends. These agreements may not be enforceable in a court, but it does serve the function of the parties sitting down and discussing the issues. Also, in Kansas, a nonparent cannot get court-ordered custody of a child unless the parent is found to be unfit in the juvenile court. Even in that situation, the custody statute states that family members are the preferred custodians of the child. K.S.A. § 38-1563(d). Also, the only people who have visitation rights to the child are the natural parents, the grandparents and stepparents. K.S.A. §§ 60-1616; 38-129; and 38-1563(d). Other states, however, have recognized the "psychological parent" concept and have given custody/visitation to a nonparent if the court finds that arrangement is in the best interests of the child.
Officially, Kansas SRS will not place foster children in homes of sexually active gays and lesbians because they are engaging in "criminal activity" (ie. criminal sodomy). However, according to one SRS attorney, children have been placed in homes in which "it would not surprise SRS that the two adults in the home were gay or lesbian partners." If there is no evidence uncovered in the home assessment concerning sexual orientation, then there cannot be a denial of placement based on a mere suspicion of the foster parent being gay or lesbian. All individuals in the home will have his/her background checked by SRS.
Massachusetts had a state policy against placing children in homes of gays or lesbians, but this policy was changed in 1990 in settlement of a law suit challenging it. Joseph Evall, Sexual Orientation and Adoptive Matching, 25 Fam. L. Q. 347, 352-53 (1991) (citing Kay Longcope, Foster-Care Ban on Gays is Reversed, Boston Globe, Apr. 5, 1990, at 1). New Hampshire's Supreme Court upheld the ban on gays and lesbians being foster parents in Opinion of the Justices, 525 A.2d 1095 (1987).
Most custody and visitation disputes between biological parents involve a heterosexual parent's attempt to obtain custody or restrict visitation based on the other parent being gay, lesbian, bisexual or transgendered. States are divided on how this factor affects the parent's ability to have custody or visitation. The cases that have decided this issue have used several different analyses.
Some states have decisions that view the issue of a parent being lesbian or gay as only one of many factors the court will consider in determining custody and it is only a factor if there is some connection (i.e. "nexus") between this issue and actual harm to the child. Constant A. v. Paul C. A., 344 Pa. Super. 49, 496 A.2d 1 (1985). Some cases that have rejected the assumption that gay or lesbian parents should not receive custody of their children are: S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985); In re Marriage of Birdsall, 197 Cal. App. 3d 1024, 1028, 243 Cal. Rptr. 287, 289 (1988); Nadler v. Superior Court, 255 Cal. App. 2d 523, 525, 63 Cal. Rptr. 352, 354 (1967); D.H. v. J.H., 418 N.E. 2d 286, 293 (Ind. Ct. App. 1981); Doe v. Doe, 16 Mass. App. Ct. 499, 503, 452 N.E. 2d 293, 296 (1983); In re J.S. & C., 129 N.J. Super. 486, 489, 324 A. 2d 90, 92 (Ch. Div. 1974), aff'd, 142 N.J. Super. 499, 362 A. 2d 254 (1976); Guinan v. Guinan, 102 A.D. 2d 963, 694, 477 N.Y.S. 2d 830, 831 (1984); Stroman v. Williams, 291 S.C. 376, 379-80, 353 S.E. 2d 704, 705-06 (Ct. App. 1987); Medeiros v. Medeiros, 8 Fam. L. Rep. (BNA) 2372 (Vt. Super. Ct. 1982); In re Marriage of Cabalquinto, 100 Wash. 2d 325, 329, 669 P.2d 886, 888 (1983); Rowsey v. Rowsey, 329 S.E. 2d 57, 60-61 (W.Va. 1985); see also In re Jacinta M., 107 N.M. 769, 764 P.2d 1327 (Ct. App. 1988) (dictum).
Other states have decided otherwise, however, and have denied custody to the gay or lesbian parent even though there was no evidence of harm to the child. Jacobson v. Jacobson, 314 N.W.2d 78 (N.D. 1981). Sometimes these cases state that the parent must be a "parent" first, and any "flaunting" of one's sexual identity or involvement in lesbigaytr political or social activities or living with a same sex partner has been viewed as not being a "parent" first and custody is denied.
Dealing with Stereotypes about Gay or Lesbian Parents.
Courts may deny custody or restrict visitation of gay or lesbian parents for several reasons. These reasons are based on assumptions about being gay or lesbian, rather than on the facts of the case before the court. Some of these stereotypes are:
The child will be harassed or teased because of the parent's sexual orientation.
A review of the cases that have denied custody based on this reason show only one reported case in which there was actual harassment, which was reported to have occurred while the child was in the nongay parent's custody. L. v. D., 630 S.W.2d 240 (Mo. Ct. App. 1982). However, a New York court and a New Jersey court have stated that some community disapproval may even strengthen the child's character, because the child learns the importance of tolerance in a multi-cultural society. M.A.B. v. R.B., 134 Misc. 2d 317, 320-21, 510 N.Y.S.2d 960, 963-65 (Sup. Ct. 1986), M.P. v. S.P., 169 N.J. Super. 425, 438, 404 A.2d 1256, 1262 (1979).
Children of gay or lesbian parents will become gay or lesbian.
Studies have shown that gay or lesbian parents are no more likely to have gay or lesbian children than heterosexual parents. (See, e.g., Golombok, Spenser & Sutter, Children in Lesbian and Single-Parent Households: Psychosexual and Psychiatric Appraisal, 24 J. Child Psychology & Psychiatry 551, 568 (1983); Green, The Best Interest of the Child with a Lesbian Mother, 10 Bull. Am. Acad. Psychiatry & L. 7, 13 (1982); Green, Mendel, Hotvedt, Gray & Smith, Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 Archives Sexual Behav. 167, 181 (1986); Kirkpatrick, Smith, & Roy, Lesbian Mothers and Their Children: A Comparative Study, 51 Am. J. Orthopsychiatry 545, 551 (1981), Bozett, Children of Gay Fathers, in Gay and Lesbian Parents, (F. Bozett ed. 1987).
Children's morals will be harmed by living with or visiting gay or lesbian parents.
Since there are many different perspectives on morality, and on homosexuality in particular, judges should avoid imposing their morality in custody decisions. Bezio v. Patenaude, 381 Mass. 563, 579, 410 N.E.2d 1207, 1216 (1980).
Children will be molested by gay or lesbian parents.
The vast majority of reported sexual abuse cases (95%) involve heterosexual males sexually abusing prepubertal females. Vander Mey & Neff, Adult-Child Incest, 17 Adolescence 717-36 (1982), R. Geiser, Hidden Victims: The Sexual Abuse of Children 75 (1979). (If the court really was awarding custody based on the risk of molestation, these statistics would support custody awards to mothers, regardless of their sexual orientation.)
Harvard Law Review Association, Sexual Orientation and the Law (1990).)
- (These cases do not involve a situation in which the "other" parent has adopted the child in a same sex "stepparent" adoption. In these custody cases, the law recognizes both as "legal" parents.)
The use of artificial insemination by lesbian couples has resulted in custody and visitation disputes when the couple separates and the nonbiological mother seeks custody or visitation. The courts in these cases recognize the biological mother as the only "legal" parent of the child. For example, see Alison D. v. Virginia M. 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991). Consequently, the nonbiological parent is denied any custody or visitation rights to the child. For a discussion of these cases see Ruthann Robson, Third Parties and The Third Sex: Child Custody and Lesbian Legal Theory, 26 Conn. L. Rev. 1377 (1994).
In Kansas, biological parents have rights of custody to the exclusion of everyone else unless the parents are found to be unfit. Even then, the relatives of the parents are preferred in determining custody, not the "unrelated" partner of the parent. K.S.A. § 38-1563(d). Therefore, nonbiological co-parents do not have rights to custody unless the biological parent is unfit and no statutes recognize a co-parent's right to visit the child.
The most reported recent case of Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) involved a grandmother obtaining custody of her grandson from her daughter because the court found the daughter was unfit because she lived with her partner in a same sex relationship. Because the couple engaged in "sodomy", a crime in Virginia, and because the court feared the child would suffer "social condemnation" from his mother living in a same sex relationship, the judge found the daughter to be an unfit mother. These factors did not outweigh the evidence that the daughter did not want the son in the grandmother's home because the grandmother cohabited with a man who had sexually abused the daughter. For a discussion of other cases see Ruthann Robson, Third Parties and The Third Sex: Child Custody and Lesbian Legal Theory, 26 Conn. L. Rev. 1377 (1994).
The state can take custody of a child from a parent through a "Child in Need of Care" proceeding under K.S.A. § 38-1501 et. seq. In doing so, the state has the burden of showing that the parent is unfit. One such case occurred in Pennsylvania and was discussed by Ruthann Robson in Gay Men, Lesbians and the Law (Chelsea House Publishers, (1997). "In Briesch [In re Brieschi, 434 A.2d 815 (Pa. Super. Ct. 1981)], a Pennsylvania case, a mother appealed when the state took away her preschool son, who had a speech problem. The appellate court upheld the removal, noting that 'Joey was exposed to a chaotic and harmful home life. The mother is a lesbian who effects a masculine appearance, wears men's clothing, and has a masculine oriented mental status. At the time of the hearing, she lived with [another woman] and two of her children in a two bedroom apartment.' The court also found the mother 'uncooperative' because she took notes in her meetings with a social worker and responded in an 'adversarial manner' with references to her attorney. When the mother refused the condition that she not live with [her partner], the court found that this 'revealed forcefully her true feelings and attitudes regarding Joey's [speech] therapy.' The appellate court rejected the mother's claim that the court was unnecessarily interfering in her lesbian relationship because there was no causal connection between her lesbianism and harm to the child."
Because many of the issues in lesbigaytr families are not disputes that lend themselves to litigation--either because the relationships are not legally recognized or because the participants to the disputes do not want a public hearing of the dispute, mediation is a viable alternative to resolving family disputes. Family law mediators are neutral and they assist the disputants in reaching an acceptable agreement concerning the issues in dispute. The mediator's ethics require the mediator to remain neutral, leave all decision-making to the disputants, facilitate negotiations between the disputants and maintain a balance of power between the disputants during the negotiations. The mediator assists the parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring compromise and finding points of agreement. Mediation may be a better option for the lesbigaytr community because it respects the parties' rights to self determination and it attempts to resolve the problem between the disputants in a "win-win" context instead of placing blame in the "win-lose" context of litigation.