Mediation with Separated Parents (Recent Research 2002-2007)

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

2007

Abstract

Mediation is a process increasingly being used to attempt to resolve conflicts between parents following divorce and separation. The article considers the problems faced by the mediator and how mediation can sometimes take the place of hostile litigation. The value and objective of mediation is to create harmony where there is disharmony. This naturally affects not only the adults but children from the relationship. The manner in which mediation is conducted varies with the mediator. One method found to be successful is discussed.

Mediation with Separated Parents (Recent Research 2002-2007)

            This article will consider the following areas:

1) Problems associated with parents after break-up and the potential value of mediation.

2) Mediation versus and litigation.

3) Value and objectives of parental mediation.

4) Manner of conducting mediation.

5) Mediation and the role of children.

1. Problems associated with parental break-up and the potential value of mediation.

            There have been many writers and investigators who have found that divorce leads to frequent procedural injustices and is in need of socio-legal reform. Bryan (2006) provides a compelling argument that the procedures used to settle divorce disputes at the present time yield unjust decisions and poor outcomes for millions of adults and children each year. The author proposes procedural reforms and possible changes in the law itself, designed to better protect both legal rights and the mental health of individuals involved in the difficult process of divorce. Woven throughout are insights drawn from the social science literature and reflections on how psychology might best serve clients struggling with divorce.

            Parenting was examined as a mediator of associations between marital and child adjustment. Parent gender was examined as a moderator of associations among marital, parental and child functioning in 226 families with a school-age child (146 boys) by Kaczynski et al. (2006). A trend suggested that fathers’ parenting may be more strongly related to internalising behaviour and mothers’ parenting may be more strongly related to externalising behaviour in boys. Mediators need to be aware of such research.

            Taylor (2005) points out that each year, 50% of all marriages end in divorce and 1 million children are exposed to a divorced family. Mediation is one of the interventions in place to put parents in control of the decision-making regarding their divorce and the future of their children . Taylor (2005) discusses what happens if they do not believe or trust the process when it is ordered. A summary of all family mediation studies over the past 20 years is carried out by Kelly (2004). This study focuses on four custody mediation programmes in the public sector, two studies of public and private sector comprehensive divorce mediations, and 3 court connected programmes for mediation of child protection or dependency disputes. Important factors are the timing of the intervention and whether it is voluntary. Success also depends on the training of the mediator. Because most mediation in the custody and divorce family sector occurs between male and female parties without lawyers present, the issue of who can mediate and how it is carried out is an important one. In the next section we will consider ‘mediation versus’ and ‘litigation’. One such procedure of mediation combined with the court is discussed at the end of this paper.

            At present the growth of the ‘never married’ parenting society, has led to an increasing number of these parents entering mediation to resolve disputes over custody, parental access, and decision-making (Raisner, 2004). Most mediators lack training in dealing with the unique characteristics of this population. Raisner examines difference between ‘never married’ and divorcing parents, events that bring ‘never married’ parents into mediation, reintroducing a parent and child, and specific strategies and interventions for mediation with parents who were never married.

            It has been well established that the trials and tribulations of experiencing a divorce are not easy for anyone who has lived through it first hand. Regardless of how the divorce occurs, it is important to note that there are likely to be hurt parties in need of healing. Taylor (2004) suggests a model based on EMDR, hypnosis, and NLP that may be combined with the efforts of mediation, divorce education and support and counselling groups to reduce the pain and anguish being experienced. It is only when the parent(s) are free from the trauma associated from divorce that they may serve as a positive influence on their children.

            The growth and acceptance of divorce and family mediation over the past several decades has been increasing. As the process of mediation has matured, there is now a wide selection of books and articles on different approaches and applications for mediation in family dissolution (Folberg et al. 2004). Despite the occasional failures, therapeutic divorce mediation is one of several interventions that hold promise for assisting highly conflicted parents to resolve disputes about their children. In recent times Conjoint Mediation and Therapy (CoMeT) initiative, is currently being tried in Australia (Smyth & Moloney, 2003).

2. Mediation versus and litigation

            Ronbeck (2006) describes how Norwegian Law regulates court procedures in child custody cases. Norwegian law asserts that “in-court mediation” should be an established part of normal court procedure related to child custody cases. “In-court mediation” involves the court judge, lawyers and expert witnesses, usually psychologists. Mediation might require several court sittings. Parents are encouraged to try out different solutions between court sittings. The “in-court expert” does not only advise the court but also provides advice and guidance to parents during the mediation process. The mediation process among other things, attempts to reduce conflict, between the parties.

            McKnight & Erickson (2004) notes the traditional adversarial system can fuel a competitive and conflictual relationship between divorcing parents. The use of mediation is therefore valuable in focusing on the future and addresses the day to day details of raising children, rather than the win-lose aspects of who gets custody.

            The middle position would appear to be court-based mandatory mediation and here there are special considerations. This relates to combining private sector mediation with the court system. Ricci (2004) urges greater attention to the needs of diverse client populations in the role each plays vis a vis the judiciary, and further refinement and implementation of standards of practice. In Great Britain the Children and Family Court Advisory Support Service (CAFCASS) have become responsible for family court work, including the provision of mediation services. Family court mediation offer a gateway for social work with children and families whose needs are largely left untouched by current services, and therefore there is a need for this organisation to play an important part within the broader extension of prevention, early intervention, parenting and support services. Over the past two decades, mediation has become a popular approach in the UK to reducing conflict and resolving disputes in a wide variety of interpersonal, community and organisational settings (Mantle & Critchley, 2004).

            Severson et al. (2004) attempts to compare mediation and litigation. Family disputes are the bane of over-burdened court systems and child access issues consume a disproportionate share of court resources. Consequently, family mediation has become a viable method of resolving these disputes and the mental health professionals are increasingly called upon to mediate child access and support disagreements. Severson et al.(2004) reports findings from one exploration into the practices of four judicial districts. Outcomes within and between court districts favouring judge-imposed orders are compared with outcomes from districts which favour mediated settlements.

            Fisher (2003) presents a report on family mediators and lawyers communicating about children. He provides a simulated dialogue between a person practising as a child-focused mediator/conciliator, who attempts to resolve a parental dispute, and the family lawyer who is acting on behalf of only one of the disputants. The dialogue, part of the “children in focus” national training programme, is designed to highlight examples of differing perceptions held by the two professionals. It suggests ways in which primary dispute resolution (PDR) practitioners may take the lead in building bridges between a predominantly legal subculture focused on individual rights (termed “lawyer land”) and a predominantly conciliatory focused on systemic child focus solutions (termed “PDR-land”). At strategic points, the dialogue is interrupted and participants feed-back is solicited. Invariably, there ensues a lively conversation among participants, often reflecting differences between those with legal and those with counselling/mediation backgrounds.

3. Value and objectives of parental mediation

            Before considering the manner of conducting mediation it is important to consider what value such mediation procedures could have and their objectives.  An Australian study by Sourdin (2006) reviews the DVD Dialogues with Separated Parents: Child Focused Dispute Resolution. It features two case studies where one couple cavorts with issues such as infidelity, depression, work-life balance, strained extended family relations, cross cultural issues, and the pressures of raising a family given the different life and family expectations. The actors are described as “wonderful “ and the portrayal is said to be highly charged. The mediator subtly shifts towards a discussion about parenting arrangements. In the second case study the background study portrays a couple who have grown apart and have different values and ideals. The mediation session commences after a careful worded introduction that emphasises that the interventions and approaches shown have taken place only after a rapport has been built, following a number of sessions.

            In 1997, the Office of Child Support Enforcement, initiated the State Child Access and Visitation (AV) Grant Programme, which involved annual awards of ten million dollars to promote the development of programmes to alleviate child access problems (Pearson et al., 2005). Telephone interviews with 970 parents who used mediation, parent education, and supervised visitation programmes funded by AV grants in 9 states revealed that the programmes were reaching diverse groups of parents including many low income parents, non white, and unmarried parents who received no other type of access assistance. The programmes also appeared to be achieving the major objectives posited for them by the Federal Government . One third to one half of non custodial parents in every programme type reported that parent-child contact increased following programme participation. This included supervised visitation users who typically had the lowest level of parent-child contact now reporting a significant increase in the number of days of contact.

            One of the difficulties involved in using mediation is when there is a threat of actual domestic violence (DV) (Johnson et al., 2005). This study empirically evaluates outcomes and found the mediators often fail to recognise and report DV in 56.9% of the DV cases. The court’s screening form are seen to fail to indicate DV in at least 14.7% of the violent cases. Mediation results in poor outcomes for DV victims in terms of protection, such as supervised visitation and protected child exchanges. Mediator capacity to focus on the child’s best interest is often called into question. Child custody mediation it was felt should not be mandated in cases of domestic violence.

            A paper by Mcintosh & Long (2005) describes the nature of parent conflict with each other, the strength of their parental alliance, and the psychological functioning of their children at the time of presentation to the mediation service. High mental health risk for the children in these families is evident from parents’ and children’s perspectives. Uniquely, the paper includes the perception of 73 children about their parent’s conflict and its impact on them. Implications are discussed, underscoring the imperatives of early intervention with separating families that includes screening of the children’s experience of conflict and their own needs for recovery.

            Mediation and other forms of alternative dispute resolution (ADR) has grown rapidly through the last few decades mainly as a result of high divorce rates, frequent conflicts between parting parents, and the resulting administrative burdens on courts.  Of especial concern is the damage caused to children in the post-divorce family relationships (Emery et al., 2005). Their paper focuses on longitudinal research involving randomised trials of mediation and the adversary settlement to support the conclusions that mediation can: 1) settle a large percentage of cases otherwise headed for the court; 2) possibly speed settlement, save money, and increase compliance with agreements; 3) clearly increase party satisfaction; 4) most importantly lead to remarkable improved relationships between non residential parents and children, as well as between divorced parents – even 12 years after dispute settlement. The key “active ingredients” of mediation are likely to include: 1) the call for parental co-operation over the long run and co-parenting beyond the crisis of separation; 2) opportunity to address underlying emotional issues (albeit briefly); 3) helping parents to establish a business-like relationship; 4) the avoidance of divisive negotiations at a critical time for family relationships.

            Co-parenting problems in the form of conflicts are likely to continue as a result of divorce and separation. This is based on implacable hostility between the parents and tends to affect the children in question. Lowenstein (2007) has provided the book dealing with parental alienation in its current insidious form and its long-term and short-term effects for children are delineated.

            Using statistical in-put data to increase available power the article by Sbarra & Emery (2005) re-evaluates the long-term effects of divorce mediation on adults’ psychological adjustment and investigates the relation among co-parenting custody conflict. This tends to be based on non acceptance of marital termination, and depression, usually by the partner who has the feeling of being aggrieved by the separation or divorce. Mothers’ or fathers’ non acceptance of mediation is positively associated with concurrent depression, whereas fathers’ non acceptance is positively associated with early non acceptance and negatively associated with concurrent conflict.  Separation and divorce is also likely to be affected by financial factors which necessitates decisions having to be made (Rose, 2004). The specific substantive financial issues to be resolved may include the allocation of the family residence, child and spousal support, retirement benefits, stock options, and business interests.

            Tishler et al. (2004) considers mediation an important component of custody evaluation and reconciliation services in domestic courts. Data from 306 couples with and without a reported history of domestic violence (DV) who were ordered to attend an assessment for mediation, were analysed to determine differences in the mediation process. More than one third reported a history of DV. A greater proportion of couples with reported DV: a) actually attended the court mandated session; b) were deemed unsuitable to participate in the mediation process; c) were in default of child support payments; d) reported drug and alcohol abuse.

            The nature and significance of agreement in family court mediation is explored in a British study by Mantle (2004). Particular attention is paid to the issues of legal representation, the voluntariness of mediation, the persistence of agreements, and the reasons why these agreements do not last. This is sometimes due to intimate partner violence.

            A study of 200 parents randomly assigned to mediation (facilitated by master’s-level social workers), and to pre-trial conferences (guided by judges), (Ashford & Faith, 2004) examines the effects of the dispute resolution methods on the attitudes of parents in child dependency disputes. The study also examines theories from the psychology of justice and trust literature for predicting the attitudes of parents regarding their dissatisfaction with the juvenile court system, the unfairness of the third parties (i.e. social work mediators or judges), and the degree of settlement achieved in the cases. Parents assigned to mediation perceived a higher degree of settlement in their case.

            An objective of mediation is considered in an Australian study by Webb & Moloney (2003). The aim of the study is to develop the ability of professionals to assist more separated parents than has been the case to date. The object is to involve their differences in way that focuses on the best interests of the children. An assumed starting point is the encouragement of arrangements that allows for parenting responsibilities after separation to continue to be shared. The precise manner in which these responsibilities are shared varies significantly from case to case. The principle underlying the assumed starting point is that the arrangements are of benefit to the children and not simply tokenism.

            Parents with enduring child disputes focus on interventions to end such implacable hostility. Kelly (2003) specialises in mediation interventions with high conflict parents in entrenched dispute patterns. These interventions, are designed to highlight areas of parent behaviour that negatively impact on children’s adjustment. In particular, four aspects of post-separation or post-divorce parent behaviours are discussed, including parents’ conflict patterns, and divorce co-parental relationships, achievable communication structures, and competent post-divorce parenting.

            There is considerable evidence that there is an alternative to litigation in the form of mediation in order to resolve conflicts between the parties (Tishler et al., 2003). Mediation is used to effectively develop co-operation between the interested parties in relation to children. It is therefore possible that child protection through mediation is considered an essential tool for juvenile courts and the families that have cases there (Olson, 2003).

4. Manner of conducting mediation

            Emery (2006) reviews the DVD, “Dialogues with Separated Parents: Child Focused Dispute Resolution” and the “Companion Handbook, Creating Child Focused Dialogues with Separated Parents: Theoretical and Clinical Underpinnings of Child Focused Dispute Resolution.” The purpose of the video and handbook are to provide for children who suffer from emotional problems due to parental conflicts. It is suggested that the mediators need to possess a combination of sensitivity, confidence, and strength. They cannot follow a script since every family is different. The emphasis must be on teaching parents to provide appropriately for their children and for that reason to respond to, and deal with, power issues between the parents (Strochak, 2005). The importance of managing the communication process cannot be over-emphasised between the parents who are now no longer together. Strochak (2005) considers parents who have never been married, spouse abusers and victims, and same sex couples who are no longer able to live together.

            Effective mothers and strategies for mediation are provided by Pruett & Johnston (2004). The concentration is on high conflict parents and the special challenges that some parents provide for mediators. For these parents, more intensive intervention is often needed to help them maintain boundaries that protect their children from ongoing conflict. The Family Therapy Institute of Siena in Switzerland appears to have found a way of providing help for children and couples by using mediation. During this meeting parents and children are asked to interplay according to procedures devised by the Lausanne Triadic Play (LTP) as directed by Elisabeth Fivaz-Depeursinge (Francini & Gargano, 2004). One of the requirements to carry out mediation is that the mediator maintains his/her neutrality, but from time to time mediators may inadvertently side with each party (Jacobs, 2002).

5. Mediation and the role of children

            The process of mediation is primarily for the benefit of providing security for children. Both parents however, should play an important role in their lives. Children are often included and sometimes excluded from the process of mediation. Margulies (2007) considers that parents separating or divorcing face dozens of legal and practical choices that can have enduring emotional consequences for the whole family. Margulies (2007) argues that the adversarial legal system often causes more harm to families who are already in distress. He emphasises that the clinician’s role is promoting negotiation and problem solving is best. Topics include: a) “understanding the nature of a good divorce”; b) choosing the right attorney or mediator; c) balancing their own interests with those of their children; d) collaboratively developing custody and parenting plans; e) preparing budgets and dealing with property and support issues; f) managing strong feelings that can get in the way of co-operation.

            The same can be said for same sex marriages where there are special problems for children (Dodge, 2006). Mayer & Normann (2006) describes the history of family mediation under the perspective of the role in the process of mediation. They state that originally children are not directly included as to empirical studies in different higher escalated families asking for help by mediation. The inclusion of children is an important issue in the theory and practice of mediation. Both writers feel that children should be included in some way in the process of mediation. In this way, family conflicts may be prevented.

            In one study 726 counselling centres from all over Germany participated in a study on family mediation (Bastine et al., 2006). The results show that nearly one third of the centres are offering family mediation as a regular service to their clients, and that mediator skills are quite frequently used by the counselling professionals. Most cases in mediation consist of separated or still married, or separated non married parents, with two children. In most cases, family mediation is used to regulate conflicts which have resulted in separation, divorce or post-divorce, mainly concerned with the issues of child custody. In contrast to the researcher’s expectations, children are introduced at the mediation process only rarely.

            Establishing children’s wishes and feelings are of interest to Mantle et al. (2006). The object of mediation here is to avoid family court proceedings if all possible. The age of the child is considered important in deciding whether the child should participate in the mediation process. Schoffer (2005) comes to the conclusion that the integration of children in mediation ought to be considered on a case by case basis, and further proposes that a child be included in divorce mediation in circumstances where the child’s input is needed to help parents resolve and issue of dispute that concerns their child’s interests.

            Saposnek (2004) asks the question: How can “the best interests of the child” be ensured in mediation when no-one is present to speak for the children and parents cannot separate their own needs from those of the children? This has led to some advocates feeling that children should be allowed to speak for themselves. However, including children in the mediation process is not without its critics and acknowledges pitfalls. Following a summary of each side of the issue, Saposnek (2004) discusses a variety of ways to include children in the mediation process, how to prepare the children and the parents for the children’s participation, and how to interpret the information provided by the children “in the best interests of the child”.

            Child-inclusive divorce mediation is growing rapidly throughout Australia, and is a practice which now affords a critical mass of experience upon which to reflect (Grimes & McIntosh, 2004). It illustrates the application of a highly responsive approach to the process of mediation, including the handling of violence disclosure by the child.

            A comparative study carried out by McIntosh et al. (2004) compares child-focused and child-inclusive mediation. The authors feel that children have largely been absent from, or on the periphery of mediation processes in post-separation parenting disputes. They therefore feel that the time is now right for child-focused mediation to become the minimum yard stick by which practice is measured. Child-inclusive practice, on the other hand, more formerly fulfils the aspirations of the United Nations Convention on the Rights of the Child (and statements from similar bodies) that children should be consulted and decisions about their welfare are being made. Further, child-inclusive practice (as defined) allows for consultation without placing the burden of decision-making on the child. The present paper by McIntosh et al. (2004) goes on to describe a current study of outcomes for families utilising these two different forms of mediation: child-focused and child-inclusive. Over 12 months this study follows a pathway of individual adjustments and parental alliance for families across the two forms of intervention, addressing whether and in what cases a child-inclusive mediation process enhances post-separation family outcome.

            The participation of children is further considered by Moloney & McIntosh (2004). They propose that the time is now right for child-focused and child-inclusive approaches, and describe in this and previous publications the importance of involving children following separation. As editor of a book Moloney (2004) further states that divorce puts emotional, economic, and educational well-being of thousands of children in danger every year. The level of conflict between parents is the key factor in how well children overcome the challenges that divorce creates.

            A number of investigators feel that empowering children in mediation is an important aspect of child custody dispute solutions being found (Sanchez & Kibler-Sanchez, 2004). The California Statute under Family Code Section 3023 states that “if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an award of custody or modification.” The problem here is, as pointed out by Lowenstein (2007) many children are alienated against one parent for the purpose of the custodial parent gaining power over the child and the absent parent.

            This leads to such situations as found by Holmes (2003) when she describes a specific example of a family interactions. It is worthwhile recording this more fully as an illustration. Debbie approached Family Mediation Centre in early 2003. She and her husband Kevin had separated a few months earlier and their daughters, Danni aged 16 and Kasy aged 12, were refusing to see their father. The couple also needed assistance to divide their matrimonial assets fairly. Debbie reported that both daughters refused to go their father’s residence by themselves. The younger daughter was reluctant to see him at all. Debbie stated that her own father was a paedophile, who had been charged with sexual abuse of her older siblings and other children. During the first co-mediation session, anxiety and tension between Debbie and Kevin was high. Both found it difficult to sit still, though Debbie was bright and “over-chatty”, while Kevin was defensive and constrained. The second session was notable in that Debbie and Kevin worked quickly and co-operatively to conclude a property agreement. The purpose was primarily to seek out the child’s experience of the separation in a manner that can be relayed to the parents. The child-inclusive nature of the Family Mediation Centre’s mediation practice created a contact for this family in which Debbie’s generosity of spirit and Kevin’s growing openness could develop and focus on their children well-being. This is an idealised but realistic situation and very common in post-divorce situations. Unfortunately the outcome is never, or hardly ever, as positive as this particular example illustrates.

An illustration of mediation procedure associated with the court.

Objective

The objective of mediation should always be to create harmony where there is disharmony. Disharmony between the partners creates problems not only for themselves but also for the children involved, as frequently they are forced to take sides. This is extremely harmful to such children now and in the long-term future. They rely heavily on their parents to be unified and to help them grow up into mature and sensible, socialised human beings.

Procedure

            The procedure which I tend to follow is to see the individuals concerned, both the adults involved and the children, and sometimes grandparents or other relations. Each individual is first of all assessed on an objective and personality test to ascertain better knowledge of their personality traits. This is followed by an assessment of their views on the subject of how to create harmony and how to eliminate disharmony and hostility between the parties.

Especially important is to obtain the views of the children involved. It is however, important to ascertain such views based on what the children truly feel and want, rather than, as frequently occurs, the expression of views which are influenced by the custodial parent. The child often, in such expression of views, shows that they have been alienated against one of their parents, usually by the custodial parent. What they voice and what they think and speak about are not necessarily what is in their best interest.

            Following an individual assessment based on both psychological testing and interview, a decision needs to be made, and this varies with each case, when parties may be seen together. No such viewing of the parties together should occur unless it has been seen that the individuals concerned are able to view the situation reasonably logically and sensibly.

            Only after it has been ascertained that there is ground for basic agreements in various areas can the parties be seen together. The objective is to make certain that there is no argument between them during the mediation procedures but that they are all working towards solving a problem which could mean the future welfare of their children as well as themselves.

Court ordered mediation

            Not all mediation procedures are ordered by the court. Some are voluntary and in some cases they may be more effective, while in other cases they are not. If it is a court ordered mediation then it is important for the mediator to be totally honest with the warring factions. They must be made aware that a report will be written delineating the result of the mediation process and most especially, who has been co-operative and who has not been co-operative in finding a solution. From the report the court will then be in a position of making a decision about how best to act in relation to the parent and the child/children involved. Since those participating in the mediation process are aware that a report will be made following a number of meetings with them, they will undoubtedly attempt to be as co-operative as possible, although in some cases this does not occur. The way forward can be mapped out by the mediator with the help of those participating and the court will have to judge the best way forward when the decisions agreed upon are put to the court. It is more than likely that when a court ordered mediation procedure occurs there is a much greater chance of a lasting solution being found to an acrimonious separation or divorce, and especially how it relates to the children involved.

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