can mediation be made to be successful in serious family disputes?
(Solving intractable hostility between former partners in contact
Ludwig.F. Lowenstein Ph.D
Southern England Psychological Services
Solving intractable disputes is essential in order to prevent
children suffering from the loss of one loving parent. This unfortunately
often occurs after a relationship between partners or parents has
ended and disharmony is the major feature. This can affect the child
in the long-term and there is evidence that such abuse of failing
to involve one of the parents leads to later psychological problems.
The concept of carrying out a process of mediation has long been
accepted as of “potential value” in solving apparently
intractable hostilities between parties. This is done as much, or
even more, for the benefit of the child/children than the two adults.
The emphasis, however, must be on the word “potential”.
When using the term mediation it is important to add therapy to
this term, because it is just that.
While there is the chance for successful outcome, there is also
the chance of mediation/therapy being a dismal failure. What this
paper attempts to answer is what to do when this occurs. In what
follows, there will be a discussion of how and when mediation/therapy
can result in valued improvement between warring factions, and when
such harmony or improvement will not occur. This is regardless of
the experience and skill of the mediator/therapist.
One of the unfortunate results of an acrimonious divorce or separation
is a deep and enduring hostility between the parents. When there
are children, the children are more than likely to be affected.
Once there is physical separation, the hostility is less direct
but still involves the children in the dispute. Mediation/therapy
is often the way to resolve the issues of implacable hostility manifested
by one or both former partners. The custodial parent always has
the advantage due to the total control of that parent over the child.
The custodial parent often disallows contact of the non custodial,
and non resident parent with the children. This is more often than
not likely to lead to the children, who will reside with the resident
parent, be it mother or father, claiming not to want contact, or
very limited contact, with the absent parent. As an expert witness,
I am often involved in assessing such clients for the courts. This
can result in mediation/therapy with the intention of resolving
the intractable hostility between the parents.
The psychologist involved in such cases usually faces great difficulties
in seeking to resolve apparently intractable hostilities. This would
seem to be the only way forward when the parties remain entrenched
in their dispute, which affects the children adversely now and in
the future. The only course of action is to promote the will of
the parents to need to resolve the basic differences between themselves
for the benefit of their children. This is one of the main objectives
of the mediator/therapist. It is a goal fraught with danger and
difficulties as will be noted when we consider the fact that mediation/therapy
does not always work to resolve the hostility between former partners.
Added to this pessimistic view is the fact that the Judiciary appears
to be helpless in the manner in which it deals with such intractable
problems. Despite this however, Judges will often support the opportunity
for mediation/therapy to take place.
Let us now view when mediation is likely to be effective.
Effective mediation results when the mediator can convince the
inimical parties that their children would benefit as a result of
the adoption of a more conciliatory attitude and behaviour towards
the other party. Since both parents claim to love their mutually,
created offspring, it would seem sensible and rational to replace
their negative feelings towards one another by promoting what can
only be called “entente cordiale”. Children benefit
from seeing their parents civil, if not friendly, towards one another
despite the break-up of the parents’ relationship. Mediator/therapists
must strive to inculcate an overwhelming desire in these parents
to co-operate in order to leave as little damage in their children
as possible. Children are happy and are more likely to mature with
positive feelings rather than be filled with negative attitudes
when parents can somehow manage to get along.
Some parents can get along, when the will is there to do so, and
turn acrimony into harmony. Not only do their children benefit from
this, but the parents themselves reduce or eliminate the bitterness
they feel towards one another. Turning negative attitudes and behaviour
into positive ones can only be achieved through the skill of the
mediator but this must be combined with the presence or promotion
of the good will of both partners.
It is important for the mediator to concentrate on individual
parents initially by seeing them on their own. This may take a number
of sessions before seeing them together. This prevents old grievances
being raised and a ‘slanging match’ occurring. It is
important to make clear to the parents that there should be no discussion
of past events which led to the break down of their relationship
and the resulting disharmony. This in turn has frequently resulted
in parental alienation and sometimes what is termed Parental Alienation
Syndrome (PAS). This leads to difficulties of contact between the
absent parent and the children. Hence, a structured agenda needs
to be put together in advance of the joint meetings. The mediator/therapist
must quickly intervene if the boundaries of the agenda considering
the present and future are breached.
Having agreed, in principle, it is then essential to work out
and stick to a programme of who will be with the children and when,
and for how long. Consideration must also be given to the handover
and handing back of children from one parent to the other. Ideally,
if the parents can get on with each other this could be a direct
procedure, but there are often problems when hostile parents meet
for the purpose of handing over their children. This therefore is
frequently an area which creates unnecessary discord. It is therefore
necessary to involve a third party to carry out the handing over
and handing back of children. This is sometimes necessary in order
to prevent acrimony between the parties which the children of course
observe. At other times, the mutual agreement between the parents
and a certain amount of ‘give and take’ can result in
very favourable scenarios which benefit both the children and the
Ineffective mediation/therapy results predominantly in child and
family disputes where there is implacable hostility between the
parents. This hostility has often increased over a period of years
due to the long-term effort of one excluded parent seeking access
to his/her child/children, or seeking to increase the access, that
he/she already has. There are frequently false allegations made
about the non custodial parent, usually the absent parent, such
as: 1) He/sheis violent and aggressive, that is, he/she has committed
domestic violence; 2) he/she abuses the child emotionally or sexually;
3) he/she is unsuitable for various reasons to be involved in contact
In addition to these three areas there is an increasing tendency
to state that a child/children do not wish any or direct contact
with the absent parent. Such a decision of the child/children is
frequently based on the alienation of the child due to programming
by the custodial parent, this having resulted from the intractable
hostility towards the absent parent.
Children will often interpret the failure of the custodial parent
to actively and sincerely encourage the child/children to have contact
with the absent parent, to be for a very good reason. They feel
there may be a danger from the absent parent towards himself/herself,
or that the absent parent has been really bad to the custodial parent.
Such subtle and indirect influences presage that the child becomes
more and more unwilling to seek good contact with the formerly loving
parent, but now absent parent. The child infers that the custodial
parent is hostile to the absent parent and there must be a reason
for this. The child therefore identifies with the views of the custodial
parent, after stating frequently in and out of court, “I don’t
need my father/mother……I only need my father/mother”,
that is, the custodial parent is solely preferred.
Judges are therefore in a dilemma being uncertain whether to accept,
without reservation, the child/s decision in this matter, or to
try mediation in order to seek a way out of this impasse. Mediation/therapy
may possibly change the child’s view of the absent parent
but this is not guaranteed. Unfortunately, the efforts of the mediator/therapist
is more likely or not to be undermined continually and effectively
by the recalcitrant custodial parent. He/she will tend to continue
their process of denigration of the absent parent and the child
becomes a virtual victim, identifying with the delusions of the
programming parent and therefore no longer wishing direct or good
contact with the absent parent.
What can be done by the Judiciary?
The only solution to the injustice and emotional abuse of the
child by the controlling custodial parent is for the psychologist
involved to make this point clear. It is also important to further
make it clear that there are only two possible resolutions; one
is a just one, the other one is not. The first is to accept what
the alienator is doing and the child’s reactions to this,
and to diminish or totally exclude the alienated parent from the
good, positive contact with the child. This in many ways is unjust
toward the non custodial parent. The second, which is the just and
right way, is to put pressure on the alienator to actively and sincerely
encourage the child to have contact with the absent parent. Such
pressure must, however, not merely be an idle threat. It must be
backed up with resolute action should the threat not be heeded.
At present Judges rarely act against the parent who flouts a decision
which is punitive towards the custodial parent especially if that
parent is the mother! It is much more likely that a Judge will at
most admonish, or encourage, and only sometimes threaten. This permits
an obdurate programmer to flout a decision made by the court. This
judgement however, could become law if the Judges were so disposed.
Judges could threaten and eventually penalise via fines, taking
children into care, imprisoning the brain-washing parent, or ordering
a change in custody. The mere threat of any of these make a custodial
parent co-operate in truly encouraging children to feel safe and
have contact with the absent parent. The threats, can however, not
be idle in nature. It is my view that only the most pathologically
disturbed custodial parents would fail to obey the ruling that they
must encourage their children to visit the absent parent and to
feel free to have good contact with that absent parent. This way
the long-term effects on children growing up with major psychological
problems will be prevented, because they have not been prevented
from having a positive relationship with an innocent and loving
Summary and Abstract
More and more parents divorce or separate. At present it is close
to 50%. When there are children, these are often used as pawns following
an acrimonious separation or divorce. This results in children frequently
being programmed against an absent parent who has little control.
Children suffer, in the short, and even more in the long term, deep
psychological problems as a result of the hostility between the
Judges sometimes suggest mediation/therapy to seek to resolve
the implacable hostility between the parents. This can work, providing
both parents cooperate for the benefit of their children. Such mediation/therapy
often fails when the Judiciary does not include a punitive sanction
against the parent who fails to be sincere in cooperating with the
mediator/therapist. There are a number, of what may seem to be,
drastic procedures available to the Judiciary; just actions which
Judges are, on the whole, reluctant to take.