with Separated Parents (Recent Research 2002-2007)
Ludwig.F. Lowenstein Ph.D
Southern England Psychological Services
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
Mediation with Separated Parents (Recent Research 2002-2007)
This article will consider the following
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
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 &
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
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
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
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,
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.
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.
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
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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