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M o D u l e

III MeDIAtIoN

C hapter 1 defines mediation as assisted negotiation. T wo or more people involved in a conflict sit down with someone they trust to talk about their differences. This broad definition encompasses a wide range of possible interventions. Although programs, practitioners, and research studies have produced more specific defi- nitions of mediation, these definitions are really describing specific models or variations of mediation. Because there is no universally accepted understanding of mediation, it is often difficult to discern what people are talking about when they say they are mediating. Mediation has been defined differently for different times, cultures, and contexts of conflict (Moore, 2014).

LEARNING OBJECTIVES

Upon successful completion of this chapter, you will be able to:

• Assess whether mediation is appropriate for particular people and their conflicts. • Explain the mediation process, including issues related to collaboration, neutrality,

confidentiality power, and voluntariness. • Prepare people for participation in mediation. • Help people share their stories and identify key issues for mediation. • Help people negotiate based on their underling interests, rather than positions,

power, and rights. • Implement creative and collaborative problem- solving strategies to help people

move toward resolution. • Help people write and formalize clear, balanced, and constructive agreements. • Ensure that mediation processes address cultural diversity issues.

Although conflict resolution (CR) literature frequently describes mediation as a new alternative, the mediation role has existed throughout history and in a variety of forms.

Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771. Created from liberty on 2020-02-16 20:29:36.

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Mediation is a natural way in which people help oth- ers deal with problems. Friends, neighbors, elders, clergy, parents, or community leaders have tradition- ally assumed the role of mediator on an informal basis. Virtually every society has had some form of mediation. Anthropological research on mediation in different societies ranges from modern Liberia to 6th- century Gaul, 13th- century France, early China,

contemporary Singapore, and the Kalahari Desert among the bush people (Bossy, 2003; Cappelletti, 1979; Chia, Lee- Partridge, & Chong, 2004; Moore, 2014; Noone, 1997). In many countries, traditional and faith- based models of mediation continue to this day ( Johnstone & Svensson, 2013). Mediation as a distinct profession and as an institu- tionalized alternative to court and other dispute resolution systems is relatively new. For example, the first court- based family mediation service began in 1961 at the Los Angeles County Conciliation Court. California became the first state to mandate fam- ily mediation in 1989 (Milne, Folberg, & Salem, 2004). Licensure and accreditation for family mediators began in the 1980s, as did development of professional media- tion courses and academic programs. The first textbook on mediation specifically for helping professionals was published by Kruk in 1997. W hile many mediation programs and associations have focused on developing professional standards and models of prac- tice for mediators, other proponents of mediation have been looking at how to support mediation as a skill set or approach to conflict that can be used by everyone, regardless of professional status.

As the profession of mediation evolves, different approaches to mediation have devel- oped. These approaches continue to be refined, critiqued, and evaluated for effectiveness. The following section begins with an overview of four of the more popular approaches to mediation: settlement- focused mediation, interest- based mediation, therapeutic media- tion, and transformative mediation. After this overview, we will explore six key premises or assumptions about the mediation process. We will then study settlement- focused and inter- est- based mediation in greater depth, using a case study to demonstrate how various strate- gies and skills fit into a seven- phase framework for mediation. While this chapter focuses on settlement- focused and interest- based mediation, Chapter 7 provides a detailed explora- tion of transformative mediation. Chapter 8 explores therapeutic mediation in the context of family conflicts. The fourth section of the present chapter contrasts mediation with inter- ventions used by other helping professionals. The next section describes how mediators can address cultural diversity concerns. The role- plays at the end of this chapter provide opportunities to practice each of the seven phases of mediation. Each role- play includes an inventory of skills and activities that can be used for each phase. As you develop your own model of mediation, you can draw from these inventories and identify which skills and activities to incorporate.

APPROACHES TO MEDIATION

Settlement- focused mediation1 is geared toward helping people terminate overt forms of con- flict by bringing them to agreement in an expeditious manner. Settlement- focused mediation (SFM) is related to the rights- based approach to negotiation, as the mediator encour- ages parties to solve their differences according to pre- existing rules, laws, or notions

1 SFM is sometimes called rule- based or structured mediation.

Take the first step in faith.

You don’t have to see the whole

staircase … just take the first step.

—Martin Luther King Jr.

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of fairness (State Justice Institute, 1998). Under SFM, mediators are task oriented and relatively directive. They keep the parties focused on the key issues in dispute. They do not delve into underlying issues such as emotions, relationships, and the history of the dispute. Settlement- focused mediators may use a range of friendly persuasion techniques to help move parties toward agreement. For instance, they may encourage each side to make compromises, express dissatisfaction for lack of progress, and offer suggestions for how the parties could settle the issues in dispute (Wall & Chan- Serafan, 2014). Although settlement- focused mediators may be somewhat assertive with the parties, they do not pound away at the parties or their positions. Rather, they honor the parties’ rights to make self- determined choices, including the possibility of not reaching settlement. They also balance their use of persuasion skills with strategies that establish their neutrality and legitimacy: empathic listening, expressions of concern, trust building, and balanced atten- tion to both parties (Wall & Chan- Serafan, 2014).

SFM is often used by judges in pretrial settlement conferences and by mediators helping clients with financial or business disputes (Noone, 1997). Government officials who are mandated by legislation to resolve certain types of disputes in accordance with the law may also adopt this approach.2 The primary advantage of SFM is efficiency, as matters can typically be settled in just one or two sessions (Woolford & Ratner, 2009). A settlement- focused approach may save time, emotional energy, and financial costs (including the costs of lawyers who may attend mediation with their clients). SFM may be popular among people who do not want to delve into relational or emotional issues, perhaps because of cultural reasons or because they believe that doing so will just stir up further controversy. Although SFM is not specifically intended to help people resolve underlying issues, it tends to de- escalate conflict by discouraging engagement in fighting, litigating, and other adversarial processes. Some settlement- focused mediators meet only separately with the parties, shuttling back and forth between them. This model allows the mediator to focus the parties on problem solving, as well as allowing the mediator to apply certain levels of pressure on each party to settle without embarrassing them in front of the other party.

Some mediators use an approach related to SFM called evaluative or advisory mediation. Evaluative mediators make assessments about the conflict and the best ways to resolve the conflict (Moore, 2014; Pickar & Kahn, 2011). Evaluative mediators communicate these assessments to the parties to encourage settlements of their disputes (Zumeta, 2015). There are many risks in evaluative mediation: (a) the mediator’s assessment may be wrong, (b) the parties may surrender their self- determination and simply acquiesce with the mediator’s assessment, (c) the parties may abandon any attempt at collaboration in order to sway the evaluator’s assessment in their own favor, and (d) the parties may become confused about whether the role of the mediator is more like that of a facilitator or a judge. Proponents of evaluative mediation suggest that it is a more efficient way of mediating, given higher rates of settlement, less time to reach solutions, and use of the mediator’s expertise to bring the parties to solution (rather than having to refer the parties to additional professionals for assessments) (Lowry, 2004). Some mediators begin their process using a facilitative approach, but will use some evaluative techniques in later stages to avoid impasse and to bring the parties to agreement (Moore, 2014). I use the term settlement- focused mediation in this book because, although it encompasses mediators who provide evaluations, the pri- mary goal is fostering settlements rather than providing evaluations. Providing evaluations

2 Such officials are often called conciliators rather than mediators. Conciliation may be used by human rights commissions, labor relations boards, and welfare review tribunals.

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is just one possible strategy that settlement- focused mediators can use to bring parties to settlement.

Interest- based mediation (IBM) encourages parties to resolve underlying interests rather than just their overt conflict. Interest- based mediators help parties move away from positional bargaining , selling the merits of a win- win, cooperative approach (Moore, 2014).3 The role of the mediator is basically to facilitate interest- based negotiation (as described in Chapter 6). IBM is designed to give parties voice, improve communication, and generate outcomes that are mutually satisfactory (Mayer, Stulberg, & Susskind, 2012). The mediator engages the parties in creative problem solving, giving them opportunities to synthesize novel solu- tions to resolve challenging conflict situations ( Johnson & Johnson, 2012). Among help- ing professionals, IBM is more popular than SFM because it attends more to relationship issues and encourages parties to make self- determined choices about how to resolve their conflicts. As compared to SFM, IBM provides clients with more time to generate creative options and enhance their relationships (Zumeta, 2015).

Therapeutic mediation is designed to help parties deal with psychological and social issues that have contributed to the conflict and have blocked their ability to resolve it. Therapeutic media- tors help parties restructure their relationships, enhance communication and problem- solving skills, and deal with underlying emotional issues (Irving & Benjamin, 2002/ 2012; Pruitt & Johnston, 2004). This model draws extensively from communication theory, eco- systems theory, insight- oriented cognitive therapy, structured family therapy, and strategic family therapy. Although therapeutic mediation has therapeutic aspects, it is not therapy per se. The focus of mediation is still to resolve specific conflicts that the parties bring to mediation.

Although therapeutic aspects occur throughout mediation, key differences from IBM occur at the beginning and end of the process. In the initial phases, therapeutic mediators conduct an assessment and premediation preparation to ensure that the clients are psy- chologically ready to participate constructively in mediation. After mediation, therapeutic mediators conduct follow- up sessions to see how the agreement has been working, includ- ing its impact on the parties’ relationships with each other and other social systems in their environment. Therapeutic mediation was developed for family conflicts, specifically in separation and divorce situations. It can be particularly useful in work with high- conflict parents, where the premediation interventions can help parents work through emotional challenges and develop insights into how to past interactive patterns were problematic and require change. Therapeutic mediation has also been used in victim– offender mediation and reconciliation programs for cases diverted from criminal court (Hallevi, 2011).

Transformative mediation promotes empowerment and recognition between the conflicting parties. This approach is designed to transform the way people deal with conflict by help- ing them develop mutual understanding and self- efficacy. It downplays the importance of settling specific issues in dispute (Bush & Folger, 2005; Gaynier, 2005). Transformation is a humanistic, healing process. Ideally, transformation transcends the immediate parties involved in the conflict. It engenders a philosophy that fosters social harmony and human- ism (Bush & Pope, 2004). Proponents of transformative mediation suggest that transfor- mative mediation is more empowering than other forms of mediation, giving clients greater control over both the process and the agreement (Zumeta, 2015). Agreement is not the goal of transformative mediation, though agreement may be a by- product.

Transformative mediation may be particularly useful in contexts where profession- als deal with ongoing conflict, for instance, educational institutions, social agencies,

3 Some mediators call this approach facilitative mediation, integrative mediation, or principled mediation.

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child welfare, criminal justice, and healthcare systems. Consider the Affordable Care Act, intended to make healthcare insurance and services more accessible (https:// www. healthcare.gov). Although Congress initially settled the issue by passing the law in 2010, implementing the new system depended on cooperation of various stakeholders, including insurance companies, states, citizens, and Congress. W hen new policies or laws are passed, each stakeholder may act in ways that support, resist, or subvert implementation (Prior & Barnes, 2011). Insurance companies have generally supported the Affordable Care Act, as it provided them with new customers and income opportunities. Opponents of the act have repeatedly tried to have it repealed through Congress or ruled unconstitutional in court. Some states opposing the new system have refused to implement its provisions for expanding Medicaid or for providing a state- run health insurance exchanges. Many Americans have simply refused to comply with the mandate to obtain health insurance. So, the conflict continues. Had a transformative approach been used and implemented effectively, the focus would not have been on passing a healthcare law, but transforming the way Congress manages conflict. Ideally, a transformative approach would have allowed members of Congress and other stakeholders to feel empowered, validated, respected, and understood. It would have helped with ongoing relations, fostering support for health- care reforms rather than resistance and subversion. Although transforming CR within Congress may be a particularly challenging task, transformation is possible across a range of institutions, agencies, and contexts of practice (Institute for the Study of Conflict Transformation, n.d.).

Proponents for particular approaches to mediation sometimes argue for mediation purity, that is, following a particular approach or model in a consistent manner. Other suggest that mediators should be eclectic, blending strategies and skills from different approaches as they see fit (G. Morris, 2015). In other words, mediators may use their professional discretion to determine what combination of approaches would be most effective in a particular situation. For learning purposes, I suggest learning each model on its own, enabling you to practice the skills and strategies of each approach separately. Practicing one model at a time can be enough of a challenge. At some point, you might decide to blend approaches. However, you will have gained a certain level of expertise and experience to help you determine whether and when a blending of approaches might be appropriate.

BASIC PREMISES OF MEDIATION

Mediation has been described as is a voluntary, confidential, nonadversarial CR process in which a neutral third party, the mediator, assists clients of relatively equal bargaining power reach a mutually satisfying agreement (Moore, 2014; Neuman, 1992). This defini- tion underscores a number of premises or assumptions about mediation:

• Mediation is voluntary. • Mediation is confidential. • Mediation is a nonadversarial process. • Mediation is facilitated by a neutral third party. • Mediation requires that the parties have equal bargaining power. • The function of the mediator is to help the parties reach a mutually satisfying agreement.

On the surface, these premises may appear valid, even obvious. However, each has led to significant debate among proponents of mediation. I will review each of these premises in light of the four approaches to mediation.

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https://www.healthcare.gov

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1. Voluntary

To say that “mediation is a voluntary process” suggests that it is not imposed on people. If they mediate, it is through free and informed choice. Although this may be true in some contexts, mandatory and coerced mediation have been used in various circumstances. In some jurisdictions, parties must try mediation before they have access to a court trial (Hanks, 2012). In others, parties are encouraged to go to mediation in order to avoid negative sanctions— for instance, police who advise citizens to go to community media- tion or victim– offender mediation to avoid criminal charges (Charkoudian & Bilick, 2015; Villanueva et al., 2014) or educators who ask misbehaving students to try peer mediation rather than receive detention or suspension (Conflict Resolution Education Connection, n.d.).

Those who advocate for mandatory or coerced mediation suggest that people embroiled in disputes need an incentive to try mediation, particularly if they have had no prior experi- ence with it. If they do not like the way mediation progresses, they can terminate the pro- cess without coming to an agreement (Hanks, 2012). Mandatory or coerced mediation fits best with SFM or IBM. Both approaches view dispute settlement as a primary function of mediation. They also allow the mediator to use some authority or pressure to move the par- ties toward settlement. In contrast, therapeutic and transformative mediation place more emphasis on empowering the parties to make their own decisions, including the right to reject mediation.

One aspect of mediation where consensus exists is that mediators do not decide the outcome for the parties (Shapira, 2014). Rather, they encourage clients to take responsibil- ity for making their own decisions about how to handle their conflict. Mediators do not try to suppress or eliminate conflict. Instead, they help parties deal with conflict deliberately, consciously, and constructively (Moore, 2014).

The assumption of voluntariness raises three important questions for helping profes- sionals: (1) Is it ethical to send people to mediation against their will? (2) Is it effective, or will people simply resist the process? (3) Can mandatory mediation be provided in a manner that is safe and fair, particularly when there may be a history of violence or power imbalances (Patterson, 2009; Ricci, 2004; Semple, 2012)?

2. Confidential

One advantage of mediation often cited by proponents is that it is a confidential or pri- vate process. Whereas court proceedings are open to the public, matters discussed within mediation are generally supposed to “stay in the room.” Mediators offer clients confiden- tiality to encourage them to trust the process and open up, even if the discussions turn to potentially embarrassing topics. To protect the confidential nature of mediation, many jurisdictions have passed laws that provide mediation the protections of privilege. Privilege means that neither the mediator nor the parties can be subpoenaed and compelled to tes- tify in court about what was said in mediation. Similar to confidentiality, privilege encour- ages parties to communicate openly in mediation without fearing that what they say might be used against them in a subsequent proceeding (American Arbitration Association, American Bar Association, & Association for Conflict Resolution, 2005, Standard V; Association of Family and Conciliation Courts, 2000; Family Mediation Canada, n.d.; S. Goldberg et al., 2012; Uniform Mediation Act, 2003). Privilege promotes resolving cases out of court, reducing the burden on courts as well as legal costs to the parties. Parties can agree that mediation is confidential and privileged even if there is no specific law protect- ing the privacy of information shared in mediation. Courts generally honor confidentiality

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agreements; however, privilege is not guaranteed unless there is a specific law providing privilege to the mediation process.

Mediators may also help parties distinguish the privacy of the mediation process versus privacy of the outcomes. The parties may agree to confidentiality of the mediation process to foster a safe, confidential place to negotiate. Thus, international diplomacy, healthcare debates, collective bargaining, and family mediation are typically presented as confidential processes. When agreements are reached, however, there may be a need for others to know the results of mediation. In divorce mediation, the results may need to be communicated to children and grandparents. In international diplomacy, the results may need to be com- municated to the public; further, the participants may need to explain how they reached particular decisions.

Although many mediators view confidentiality as vital to an effective mediation pro- cess, there are many exceptions to both confidentiality and privilege. Information about child abuse, elder abuse, or abuse of people with disabilities, for instance, may be subject to mandatory reporting requirements. Furthermore, confidentiality and privilege do not apply for court or disciplinary proceedings concerning allegations against a mediator for professional misconduct or malpractice. Some laws also allow courts to compel mediators or parties to testify in matters related to criminal acts (e.g., if one client threatened to kill the other) or matters of national security (e.g., under the Patriot Act).

Some mediators offer clients a mediation process that is neither confidential nor privileged. Mediation should be open to the public, for instance, if it pertains to a policy issue for a governmental organization that is subject to laws requiring all meetings to be open. Some mediators offer “open,” “recommending,” or “nonconfidential” mediation to parties as part of hybrid mediation processes such as mediation- arbitration (med- arb) or mediation- evaluation (Pickar & Kahn, 2011; Ricci, 2004). Initially, the mediator tries to help the parties negotiate their own agreement. If the parties cannot reach agree- ment on their own, then the mediator changes hats (or roles) and becomes an arbitrator or evaluator. A med- arbiter uses information from the mediation stage to help inform the arbitrated decision. A med- evaluator4 uses information from the mediation to help inform his or her evaluation and recommendations, which the med- evaluator may pro- vide to court. W hereas some mediators believe that hybrid roles are effective and ethi- cal processes, others question whether these hybrid roles actually defeat the purpose of mediation (Barsky, 2013a; Shienvold, 2004). In terms of confidentiality, mediators must consider whether parties will be able to openly discuss all their concerns and all the possible solutions, if they know that their communications may be disclosed in court or other forums.

SFM fits best with hybrid models such as med- arb, in which information from the mediation can be used in later processes. During the mediation stage, parties are not expected to discuss relational or emotional issues. Accordingly, they will not be as con- cerned about information from mediation being used at a follow- up hearing. Their main goal is to settle the dispute, whether in mediation or in the follow- up process. The other approaches to mediation invite parties to disclose various levels of personal information related to emotions and relationships. Offering confidentiality and privilege in these pro- cesses is important if the mediator wants to encourage parties to trust the process and open up. Even when mediators offer confidentiality, however, absolute confidentiality can- not be assured.

4 Often, the professional is simply referred to as an evaluator, rather than a med- evaluator, even though the professional’s role includes both mediative and evaluative functions (Barsky, 2013b).

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3. Nonadversarial

Mediation is frequently viewed as an alternative to adversarial processes such as court, arbi- tration (Ferguson, 2013), and adjudicative grievance procedures. This perspective suggests the mediator’s role is to encourage the parties to cooperate rather than compete. If the par- ties adopt power or rights- based approaches, the mediator may have difficulty moving them away from adversarial positions and tactics. However, the mediator may be able to help them work toward settlement despite their adversarial relations. SFM would view settle- ment as success. The other models, however, suggest that the mediators should also resolve underlying issues or foster more positive relations between the parties.

Historically, some cultures viewed reconciliation (restoring relationships) as the ultimate goal of mediative processes (Bossy, 2003). The predominant view in professional literature suggests that success in mediation does not require reconciliation, although it might include fostering better relations. Paradoxically, mediation and reconciliation sometimes work in opposite directions. For instance, when a separated couple is involved in mediation over child custody and visitation issues, the purpose of mediation is to come to an amicable resolution whereby parents remain separated from each other. In contrast, reconciliation counseling is designed to help bring parents back together as a couple and as a reunited family. Some writers suggest that mediation is better suited to conflicts requiring some type of ongoing relation- ship, rather than when there is no prospect of a future relationship (Ojelabi, Fisher, Cleak, Vernon, & Balvin, 2011). Mediation can be used to help the parties renegotiate their roles into a different form of relationship instead of reconciling into the pre- existing one (Emery, 2011).

Consider this: Is it necessary for mediators to help parties move toward more amicable relations, or is settlement of the immediate issues in dispute sufficient? Will settlements endure if the parties have not resolved their relational problems? Is reconciliation the ulti- mate goal of mediation?

4. Neutral Third Party

Most mediation literature and codes of ethics suggest that mediators must be independent, neutral, or impartial. However, the authorities differ as to which terms to use and what each of these terms mean (Mayer, 2015; Mayer et al., 2012).

Independence suggests that the mediator has no economic, emotional, psychological, or authoritative affiliations with any party involved in the conflict. If the mediator is related to one party— for example, as a therapist, parent, lawyer, or teacher— then the other party might have concerns that the mediator will be biased. Thus, many professional codes of ethics suggest that professionals (including mediators) should avoid dual relationships with their clients. If the mediator discloses any affiliations to the parties, the parties have the option of accepting or rejecting the mediator. Independence also provides the mediator with profes- sional distance, the ability to look at the situation from an objective perspective.

Some authors equate neutrality with independence, but others go further. To be neutral, the mediator should have no pre- existing biases, no decision- making authority, and no stake in a specific type of outcome. In addition, the mediator should not demonstrate bias toward one side or the other (Fehrenbach & Hubbard, 2014). Each of these aspects of neutrality poses certain challenges.

First, all mediators have pre- existing biases (C. Beck, Sales, & Emery, 2004). At the very least, aren’t all mediators interested in helping the parties resolve their conflicts— amicably, constructively, efficiently, fairly, or effectively? Don’t all people carry certain values and biases? One response to these concerns suggests that mediators should be mindful of their biases (through reflection or other self- awareness processes described in Chapter 1). In some situations, mediators can try to suspend their biases so they do not impose them on the parties. For example, a mediator who believes that religion is important must recognize

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that clients have a right to make their own decisions about religion. Mediators should be clear and transparent about any biases or predispositions that they intend to bring into the mediation (Mayer et al., 2012). During the initial phases of mediation, for instance, media- tors describe their mediation approach and strategies. If the mediator values promotion of amicable relations, the parties will know this from the start and will have an opportunity to accept or reject services from this mediator.

In terms of no decision- making authority, most mediators would agree that they cannot mediate if they also have the ability to impose decisions on the parties. Mediation is designed to promote self- determination, not tell the parties what to do (American Arbitration Association et al., 2005, Standard I; Mayer et al., 2012). However, some CR practitioners use med- arb, a hybrid process in which they begin the process as mediators. If the parties do not come to a resolution in mediation, then the CR practitioner becomes an arbitrator and makes a decision for the parties (Barsky, 2013b). Similarly, a judge in a pretrial conference uses mediative strategies to try to bring the parties to a settlement. If the parties do not settle, then the judge hears the case and makes a decision for the parties. In most jurisdictions, the judge who conducts the pretrial does not hear the case if it goes to trial. If conflicting parties know that their mediator may become their judge or arbitrator, they may act differently in the mediation process. During mediation, a mediator wants the parties to feel free to disclose information, even if it might be embarrassing. If the information may be used in arbitration or court, the parties may be less willing to divulge information.

Although all four contemporary approaches to mediation say that the parties have a right to make their own decisions, some approaches allow for greater mediator influence than oth- ers. Settlement- focused mediators are most likely to use directive techniques in mediation in order to expedite a settlement (e.g., making decisions about process issues such as sequencing, staging, ground rules, and timing, rather than allowing the parties to negotiate these decisions). Interest- based and therapeutic mediators are less directive but still adopt strategies where the mediator encourages amicable solutions. Transformative mediators are the least directive mediators. They focus on facilitating communication and understanding rather than facili- tating settlements. Still, they cannot deny that they have an influence on how agreements are reached. Some mediation theorists suggest that as soon as mediators start to evaluate the merits of the case or use their own knowledge to influence the outcome, they are not acting in a strictly neutral manner (Fehrenbach & Hubbard, 2014). Research suggests that parties involved in high- conflict situations may be more amenable to more directive mediators (Lewicki et al., 2010). In situations with lower levels of hostility, the parties are better able to negotiate on their own. They may be less amenable to pressure or overt direction from the mediator.

The third aspect of neutrality, having no stake in a particular outcome, suggests that the parties are free to make their own decisions about how to resolve their conflicts. Whereas traditional mediators such as clergy and elders were able to influence people to conform to religious or community norms, most contemporary, professional mediators do not ascribe to the view that they are entitled to play the role of social conscience, law enforcement, or other agent of social control (Mayer et al., 2012; Moore, 2014).5 Still, mediators are subject to constraints and incentives created by the systems they work for. For example, if success

5 Whereas traditional mediators were often chosen because of their position and what they represented in the community, professional mediators are usually chosen because they are viewed to be neutral. They empha- size the rights of the parties to resolve disputes according to their own values and interests. Still, some mediators are chosen not because of professional mediation training but because of knowledge, status, and experience in a particular field relevant to the type of conflict; lawyers for legal matters; accountants for financial issues; helping professionals for psychosocial, family, and community conflicts; business managers for organizational matters; and former heads of state for international conflicts are some examples.

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in mediation is measured by the percent of cases that settle, then mediators may be enticed to pressure parties into settling. If a mediator receives funding from a body with a particular political viewpoint, then the mediator may feel pressure to guide the parties to solutions that fit this view.

The final aspect of neutrality is not siding with one party or another. This ensures that the process is fair and perceived by the parties to be fair. In some cases, this means treating everyone even- handedly: giving both parties equal time to speak, ensuring that both parties feel heard, creating symmetry in enforcing ground rules, and providing the same negotia- tion support to both parties (Fehrenbach & Hubbard, 2014). One of the biggest controver- sies in mediation concerns how to handle an imbalance of bargaining power between the parties (described later). If the mediator intervenes to redistribute bargaining power, then is the mediator being neutral? If the mediator does not intervene, then is the process fair?

Consider the place of neutrality in bioethics mediation. In bioethics mediation, the mediator helps healthcare providers work through ethical conflicts with patients and fam- ily members concerning the care of the patient (e.g., the family of an unconscious patient wants to keep the patient in intensive care, but the doctor views this as futile because the patient is going to die and the hospital can use the intensive care bed for another person who has a greater chance of living). Bioethics mediators are usually employed by the hospi- tal. Although the patient and family might have initial concerns that the hospital’s mediator will side with the healthcare staff, there are benefits to having an in- house mediator. First, an in- house mediator is available to handle urgent situations. There may not be time to hire an outsider. Second, an in- house mediator has specialized knowledge of medical ethics, laws and policies governing what can and cannot be done, and mediation processes that fit best with this type of situation (Dubler & Liebman, 2004). In order for the family to trust the mediator, the mediator needs to establish neutrality by the way he or she responds to the parties. Also, the hospital must be supportive of the mediator being neutral rather than supportive of staff positions and preferences.

Some writers suggest that mediators need to be impartial rather than neutral (Fehrenbach & Hubbard, 2014). Although some mediators equate neutrality and impar- tiality (Mayer, 2015), others suggest that impartiality specifically refers to absence of bias, prejudice, or favoritism to either party (American Arbitration Association et al., 2005, Standard II). The mediator should not side with one party or the other. Furthermore, the mediator should not be seen to side for one party or the other. Mediators’ backgrounds and prior affiliations are not problematic as long as the mediators can demonstrate by word and by deed that they are treating the parties fairly (Lewicki et al., 2010). Although this concept deals with some of the issues around neutrality, the question still arises about what it means to be impartial when there is an imbalance of power between the parties. Rifkin, Millen, and Cobb (1991) suggest that a mediator should demonstrate “equidis- tance” as well as impartiality. Equidistance refers to the ability of the mediator to assist all parties express their “sides.” Equidistance requires even- handedness. It allows the mediator to align temporarily with each party, so long as the mediator eventually assists all parties equally (C. Beck et al., 2004; Mayer, 2015).6

Must a mediator be independent, neutral, equidistant, or impartial? Why are these qualities important? Are they values that are inherent to all forms mediation, and within

6 To maintain equidistance, mediators should use mindfulness to ensure “equipoise.” Equipoise refers to assess- ing information, thoughts, and emotions in a deliberate manner, rather than being affected by automatic, habit- uated reactions (Coates, 2015). In other words, self- awareness is key to avoiding biased assessments and responses.

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all cultures? Are they simply means to an end? Can mediation be effective if mediators are not independent, neutral, equidistant, or impartial? Does the legitimacy and effectiveness depend on whether a mediator is neutral or whether the mediator is creative, compassion- ate, smart, trustworthy, and fair (Mayer et al., 2012)?

5. Equal Bargaining Power

Power imbalances occur when one party has more information, better negotiation skills, greater resources, or more strength than the other party. Power balancing refers to mediation strategies aimed at rectifying power imbalances to promote productive and effective negotiations (Lang, 2004). If the mediation process is patently unfair, at least one party is likely to be dis- satisfied with the process (Howieson, 2011). Further, the outcome is also likely to be unfair, leading to instability of the agreements (Mayer et al., 2012). Power- balancing strategies include ensuring that the disadvantaged party has access to information (del Campo, Vilà, Martí, & Vinuesa, 2011), time to reflect before making decisions, opportunities to enhance negotiation skills, or support from others to counter the greater strength or resources of the advantaged party. Mediators may also meet individually with the disadvantaged party to help that party articulate concerns and feel more secure in the process (Patterson, 2009).

The issue of bargaining power raises important concerns for both proponents and crit- ics of mediation. Basically, four views exist: (a) Mediators should only mediate if there is relatively equal bargaining power between the parties; (b) mediators should only mediate if there is equal bargaining power between the parties or if they can balance bargaining power through their interventions; (c) mediators should mediate regardless of bargaining power between the parties and have no obligation to rebalance power when an imbalance exists; and (d) mediators should never mediate, because they cannot properly assess for power imbalances and because they cannot properly redress power imbalances when they do exist. My own view is, “It depends.” Therapeutic mediators7 are most likely to view power balancing as an integral role of the mediation process (Irving & Benjamin, 2002/ 2012). Therapeutic mediators often deal with family disputes rather than commercial or public policy disputes. In family disputes, therapeutic mediators are aware that power imbalances frequently exist between spouses, as well as between parents and children. Balancing power is necessary in order to protect spouses, children, or elders from coercion, exploitation, and abuse. Accordingly, family mediators must be knowledgeable about how to deal with issues related to safety and power imbalance (A. Crampton, 2013). Challenging power imbal- ances may also be necessary in conflicts involving social injustices (McCormick, 1997), such as racism, homophobia, and discrimination against people with disabilities.

Mediators who do not view power balancing as legitimate often specialize in mediat- ing commercial disputes. Although power imbalances exist in commercial relationships, businesses operate in a capitalistic, competitive environment. If the parties do not use a mediator, they would still negotiate under the dynamics of a power imbalance. Many com- mercial mediators believe that they should not interfere with the parties’ relative strength in negotiating with one another. According to this view, power balancing runs contrary to neutrality and impartiality (Mayer et al., 2012). On the one hand, why would a more powerful party submit to mediation if she knows the mediator will power balance in favor of the weaker party? On the other hand, how is it fair to a party who is less articulate, less knowledgeable, or less assertive, for a mediator to say, “It’s not my responsibility to help you with such issues.”

7 Particularly feminist- informed therapeutic mediators.

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Transformative mediators also view power balancing as inappropriate (Bush & Folger, 2012). They emphasize the rights of the parties to make self- determined choices. This includes the right of the parties to choose whether to participate in mediation. If a weaker party believes that mediation will not be fair, then that party can refuse to participate in mediation. Transformative mediators do support the use of empowerment interventions, but differentiate these from power rebalancing. The purpose of power balancing is to redis- tribute power to the weaker party in order to ensure that the mediation process is fair. The purpose of empowerment is to provide both parties with skills and support to enable them to make self- determined, conscious choices (Bush & Folger, 2005). This still raises the ethi- cal dilemma of the mediator’s role when self- determination, fairness, and impartiality con- flict (Menkel- Meadow & Wheeler, 2004).

Settlement- focused and interest- based models of mediation do not specifically indicate how mediators should deal with power imbalances. It may depend on the context of media- tion or the values of the particular mediator.

Some feminist critiques suggest that family mediation between men and women is inherently unfair given the systemic disadvantages of women in society. Some are con- cerned that mediators are incapable of assessing for power imbalances, particularly woman abuse. Others believe that mediators are not able to power balance and assure the safety of women, even if mediators were able to assess for such problems (Pearson, 1997; Semple, 2012). During the 1990s, feminist- informed models began to develop in order to respond to these concerns (Irving & Benjamin, 1995). Feminist- informed mediators conduct more thorough assessments for power imbalances and abuse. They establish firm ground rules to minimize the risk of exploitation or abuse. They are also very interventionist when abuse or power imbalance issues do arise (Flynn, 2005; Milne, 2004).

6. Mutually Satisfying Agreement

Although most definitions of mediation suggest that one of the mediator’s functions is to help the parties reach a mutually satisfying agreement, this description fits best with the settlement- focused and interest- based paradigms of mediation. On the surface, this role seems obvious. Why would parties go to a mediator if not to get help to settle their dispute? If a mediator adopts a transformative approach, however, the role is to facilitate empower- ment and recognition (Bush & Folger, 2012). Likewise, if a mediator adopts a therapeu- tic approach, then reaching a mutually satisfying agreement is not the only role (Irving & Benjamin, 2002/ 2012). Therapeutic mediators foster more positive communication and relationships between the parties, as well as help them resolve underlying issues.

Although many mediators view agreement as a central goal for mediation, media- tors must ask whether any agreement is sufficient. Must the agreement be fair? Durable? Reasonable? Legal? If the parties are satisfied with an agreement, then why should a media- tor question their decision?

* * * * * In summary, various mediation approaches lend themselves to different ways of handling cases. Further research is needed to answer questions about which approaches are most effective and for what purposes (C. Beck et al., 2004). Mediators tend to have different ori- entations depending on their professional backgrounds (Baitar, Buysse, Brondeel, De Mol, & Rober, 2013). Mediators with mental health backgrounds tend to focus on family systems, affective issues, needs, and subjective criteria for fairness; mediators with legal backgrounds tend to emphasize the contract, cognitive negotiation, rights, and objective criteria for fair- ness (Hermann, Hollett, Eaker, & Gale, 2003). Professional background may affect one’s approach to mediation. However, the field of mediation has encouraged crosspollination

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between professions, in which people of different professional backgrounds are learning mediation from each other and blurring boundaries traditionally associated with their pro- fessional backgrounds (Baitar et al., 2013).

Individual mediators and programs must determine which approaches to adopt. As you work through this chapter, consider how you will determine your model of practice. Will it depend on your values, the agency context, the clients’ request, or which approach has proven clinically to be most effective?

CONTEXTS FOR MEDIATION

One area of talent that helping professionals bring to mediation is their ability to deal with process— for instance, facilitation skills, active listening, and helping people express feel- ings. Helping professionals also have content knowledge and expertise that are advanta- geous for mediating in specific contexts: divorce and separation, intergenerational family disputes, child abuse and neglect, community conflict, teacher– student conflict, alterca- tions in healthcare and residential treatment settings, social policy development, workplace harassment, cross- cultural disputes, and criminal justice (Conflict Resolution Education Connection, n.d.). Some helping professionals focus on mediation between individuals. Others mediate primarily between groups and larger social systems (Kirst- Ashman & Hull, 2015). The following two sections illustrate informal and formal roles for helping profes- sionals as mediators.

1. Emergent Mediation

Emergent mediation refers to an informal process of mediation that develops (or emerges) from other forms of relationships (Morasso, 2011). In emergent mediation, helping pro- fessionals retain their primary professional identification (e.g., as a psychologist, teacher, social worker, therapist, nurse, or counselor). They do not become mediators as such, and they do not even identify themselves as mediators. However, they draw from a broad range of mediative techniques without becoming a formal mediator. Consider the following examples:

• Two professional colleagues are debating the ethics of a particular intervention. You offer to help them work through the problem. They see you as a professional peer rather than a mediator, though you are using a mediative approach.

• You are a community development worker. Your community is split about its goals. You use mediative techniques to help them build consensus.

• You are a physician who has an elder patient with advanced dementia and is seriously ill. During the course of treatment, family members disagree about the use of a feeding tube. As a physician, you have a professional opinion on this matter, but you also want to help family members reach agreement about how to proceed. You decide to assume a role as informal mediator (Back & Arnold, 2005).

• You are working with a family in which the teenager has rejected the parents’ religion. In your role as therapist, you employ mediative strategies to help them reach a mutual understanding.

Professional codes of ethics for mediators (including rules related to competence, confi- dentiality, dual roles, and informed consent) do not specifically apply to emergent media- tors. When acting as an emergent mediator, the professional is guided by the codes of ethics of his or her primary role (e.g., nurse, psychologist, teacher, parole officer).

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2. Contractual Mediation

Unlike an emergent mediator, a contractual mediator is hired specifically to mediate (Morasso, 2011). The process typically begins with an explicit Agreement to Mediate. The Agreement to Mediate, sometimes called a retainer, delineates the roles of the parties, the role of the media- tor, and the parameters of the mediation process. Contractual mediators typically subscribe to a code of ethics for mediators. When a helping professional assumes the role of a contractual mediator, for example, it is generally inappropriate to carry on a dual role. Accordingly, it is important to consider whether a conflict of interest exists between your usual helping role and your potential role as a mediator. The following cases illustrate possible conflicts of interest:

• Priscilla is a psychologist who has conducted a battery of psychological tests with a client named Clint. Clint is going through a divorce and asks Priscilla to mediate. If Priscilla accepts the mediation role, what happens to the information from the psychological tests? Can Priscilla use this information in mediation? Does Clint’s former spouse have access to this information?

• Charles and Chester are child protection workers. Chester is having a dispute with a family that is upset that Chester has put their children into foster care. If Charles offers to mediate this dispute, what concerns might the family have regarding neutrality and fairness?

• Alex is an antipoverty advocate. A government official asks Alex to mediate a dispute between two agencies that serve unemployed individuals. If Alex accepts this role, must he relinquish his advocacy role?

• Stephanie is a student who has been suspended from school. Her teacher, Tony, is also the chief mediator in the school’s CR program. If Tony were involved in the original sus- pension, how could he act as a neutral or impartial mediator in Stephanie’s case?

Dual relationships and conflicts of interest are particularly problematic in small, isolated communities (Gonyea, Wright, & Earl- Kulkosky, 2014). In small communities, it is virtu- ally impossible for mediators to have no prior relationships with the parties. While bringing a mediator from outside the community may be the answer, this is not always practical or desirable. Aside from the costs of bringing in a mediator, local mediators have the advantage of understanding the local culture and context of the dispute.

While some helping professionals work exclusively as mediators, most mediate as just one part of their practice. Social agencies and court- affiliated services are able to hire full- time mediators if they have sufficient referrals. Mediators in private practice, however, need to build referral sources over time to be able to generate sufficient cases to support a full- time practice. In most jurisdictions, mediators cannot expect to simply hang up a shingle and wait for cases to show up at the door (Raines, Kumar Pokhrel, & Poitras, 2013). Mediators need to become known in their communities, educating potential referral sources about mediation, generally, and their own services, in particular.

MEDIATION BET WEEN INDIVIDUAL S: A CASE ILLUSTRATION

To demonstrate mediation in practice, the following case provides a comparative analysis, incorporating skills and strategies from SFM and IBM. Both approaches follow the same general phases; however, settlement- focused mediators tend to be more directive and task- oriented, whereas interest- based mediators tend to be more facilitative and process- ori- ented. Arguably, these two approaches are not categorically different; mediators may use various combinations of facilitative and directive skills. By providing a case that compares

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facilitative and directive approaches, you can see how different mediators approach similar issues. When you are mediating a particular conflict, you will want to assess the needs of the clients and make deliberate decisions about how facilitative or how directive to be.

The basic mediation framework consists of seven phases: preparation, orientation to mediation, storytelling and issue definition, exploring interests and needs, negotiation and problem solving, finalizing an agreement, and follow- up. Consider the following situation.

Elvis and Englebert are two employees at Conflictia Software Enterprises (C- Soft). Elvis is 28 years old and has been with the company for 5 years. He is considered a senior employee in this young, progressive company. Englebert is 22, fresh out of college. In the 2 months Englebert has been working for C- Soft, Elvis has subjected Englebert to a series of hazing rituals— shaving his head, making offensive messages pop up on his computer, and posting embarrassing photos of him on Facebook.

The next seven sections demonstrate how each phase of mediation could be implemented by settlement- focused and interest- based mediators. Toward the end of this chapter are seven role- play exercises, each focusing on one of the seven phases. Each role- play includes an inventory of skills and activities to be considered at each phase of mediation.

1. Preparation

People can find their way into mediation through various avenues: self- referral, referral by third parties, or imposition by judges or other third parties (Charkoudian & Bilick, 2015).8 Englebert might request mediation, Englebert’s friend might suggest mediation and contact a media- tor, or Englebert and Elvis’s supervisor might demand that they go to mediation. The super- visor might decide to mediate the conflict personally, as an emergent mediator. One role of a supervisor is to deal with relations between employees. Emergent mediation is less formal than contractual mediation. The supervisor would abbreviate, omit, and combine many of the skills and activities of mediation. For example, there would be no formal Agreement to Mediate. Introductions could be relatively brief because the parties already have a relation- ship with their supervisor.

If the parties go to a contractual mediator, this could be someone who works for the agency (e.g., in their human resources department9 or employee assistance program10). Alternatively, the mediator could be from outside the agency (e.g., a private mediator, a mediator who works for a human rights tribunal, or a mediator who works for a service that receives cases diverted from court).

Assume that Englebert goes to his supervisor, Sheryl, to file a formal harassment com- plaint about Elvis. Sheryl suggests that they use the services of a human resources counselor to mediate their dispute. Neither Elvis nor Englebert knows anything about mediation. Englebert says, “You can’t force me to go to meditation … medication … whatever.” Sheryl suggests that they each meet individually with the mediator, so they can make informed choices. Contractual mediation does not formally begin until the parties have signed or orally

8 Third- party referrals include referrals by family members, neighbors, employers, schools, police, government agencies, private companies, social agencies, probation, religious institutions, and housing associations.

9 The human resources department is sometimes called a personnel department. 10 Employee assistance programs traditionally provide counseling, vocational, and therapeutic services.

Some employers also offer mediation services as part of their employee assistance programs, antiharass- ment processes, or legal assistance programs.

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committed to an Agreement to Mediate. Sheryl believes that mediation should be voluntary, so she says there will be no negative consequences from C- Soft if they decide not to mediate.

The mediator, Medina, receives the mediation referral from Sheryl. The mediator accepts basic information about the conflict from the referral source, including who is involved, how can they be contacted, and whether the case includes any special concerns, such as a risk of violence. Medina does not want to gather too much information at this phase so the parties can present the information themselves. If Medina accepts more information from the referral source, she risks having the parties believe that she has pre- existing biases when they enter the process.

To prepare for mediation, the mediator contacts the parties, conducts preliminary assess- ments to ensure that the situation is appropriate for mediation, arranges for interaction between the parties, and strategizes how to begin the mediation process. Because Medina knows this case includes a claim about workplace harassment, she inquires whether there are safety issues: (a) Is the alleged harassment ongoing? (b) Are the parties continuing to go to work during mediation? and (c) Has either party’s employment been suspended? Sheryl says both parties are continuing to work, but they have been placed in separate departments. She does not believe there are safety issues. Medina asks whether either party has an uncon- trolled substance abuse problem, mental illness, or other concerns that might hinder their ability to mediate (Barsky, 2013b). Sheryl says she does not know of problems in these areas.

Medina contacts each party by telephone to arrange for the first mediation session. Settlement- focused mediators generally use this phase to schedule meetings, without fur- ther assessments. Interest- based mediators might assess the parties’ willingness and ability to negotiate more thoroughly. Elvis indicates reluctance to mediate. He does not think he did anything wrong, so why should he be punished? Medina assures him that she is not there to judge or punish him. She has no power to judge or sanction either party. Englebert hints that he feels intimidated by Elvis but says he does not fear face- to- face contact with him.

When inviting prospective clients to participate in mediation, the language used by the mediator can affect whether they agree to mediate. Mediators may use noncoercive persuasion, encouraging people to participate without pressuring or manipulating them. If Medina were to ask, “Do you see any benefit in mediating?” Elvis might be inclined to say, “No,” and then elaborate on his reasons that mediation would not be helpful. Instead, Medina explains mediation and then inquires, “Would you be willing to try mediation?” Most people have a tendency to agree. They want others to see them as reasonable and will- ing to try something that might be helpful (Sikveland & Stokoe, 2016).

To ensure that both parties can negotiate fairly, Medina meets with both parties indi- vidually before bringing them together. If Medina took a settlement- focused approach, she might prefer to meet with both parties together right from the start. However, interest- based mediators are more likely to meet individually first if they are concerned about safety or power imbalance issues.

Medina considers possible legal issues that might arise in this case. Neither party has a lawyer. However, if harassment were proven, C- Soft could fire or discipline Elvis; Englebert could also sue Elvis for damages. Medina informs the parties about the benefits of obtain- ing independent legal advice and ensures that they have access to legal advice should they be concerned about their rights or other legal issues. Both parties decline legal advice at this phase. Both interest- based and settlement- focused mediators should consider whether legal advice is important. The extent to which they encourage or direct parties to obtain legal advice depends more on the nature of the legal issues than their approach to media- tion. Still, settlement- focused mediators may be more likely to encourage parties to bring attorneys to mediation because they view the dispute as based in rights. Interest- based mediators sometimes prefer to meet without attorneys present to encourage collaboration and to foster communication between the parties rather than through their attorneys.

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The mediator considers who should be included in the mediation process: Englebert, Elvis, Sheryl, witnesses, people who have participated in other hazing rituals, and support per- sons for both parties. She decides to begin with Elvis and Englebert, the two people directly involved in the conflict. Initially, most mediators tend to limit the number of people to keep the process simple. Bringing in additional parties as the process progresses is generally eas- ier than asking parties to leave mediation. Accordingly, mediators can limit the number of people involved at the beginning and bring in others on an as- needed basis— for example, to balance power, to offer suggestions, or to help implement decisions made in mediation. If attorneys or interpreters are needed, they should be included from the start.

Medina arranges appointments with each party in her office. The office is arranged in a manner that is conducive to mediation: private, quiet, impartial, and comfortable. The room has a round table, enabling parties to sit around it and take notes. The light and color schemes are soft. Ventilation is good. The office is housed in the same building where Elvis and Englebert work. This presents two potential problems. First, others in C- Soft can see when they come to mediation, partially infringing Elvis and Englebert’s right to confidentiality. Second, the office is affiliated with C- Soft, giving the impression that Medina might use the authority of the employer to influence the outcome of mediation (e.g., pressuring the parties to agree to terms that reflect the norms and policies of C- Soft). Settlement- focused mediators may be less concerned about this type of issue than interest- based mediators. However, Medina can raise this issue to see whether the parties are really concerned about Medina’s affiliation with C- Soft.

2. Orientation to Mediation

The orientation phase begins with the first meeting with the parties, either jointly or individu- ally, and ends with the parties agreeing to mediate. The primary purposes of this phase are to help the parties understand mediation and to obtain their commitment to a particular process. The mediator tries to establish norms that will ensure that the parties participate constructively. Mediators encourage the parties to trust them by demonstrating warmth, unconditional positive regard, honesty, concern, and empathy with each party, as well as neutrality, knowledge, and competence as a mediator (S. Goldberg & Shaw, 2007; Moore, 2014; Poitras, 2009). The orientation phase of mediation is particularly important as mediators can use their explanations of mediation to establish their credibility and compassion as mediators.

As Medina goes to the reception area, she conducts a preliminary assessment based on a visual scan. She notes that Englebert and Elvis are sitting at opposite ends of the reception area. They are giving each other no eye contact. They appear uncomfortable simply being in the same room as each other. Englebert is nervously tapping his hand on his leg. Elvis is humming to himself, perhaps trying to imagine he is somewhere else. Elvis’s clothes are immaculate, whereas Englebert looks a bit disheveled. Medina wonders whether this could indicate Elvis is more organized and perhaps more powerful in nego- tiating. She is mindful that these assessments are tentative and that she must be careful to avoid stereotypes.

Medina welcomes Elvis and Englebert by name, shakes their hands, and invites them into her office. As they walk back to her office, she reviews key points that she wants to cover in the opening of her session. She notes that it is important to model effective communica- tion skills and encourage the parties to follow suit. She also wants to build trust by dem- onstrating impartiality. For settlement- focused mediators, the orientation phase is relatively short. The mediator provides an introductory statement that explains the goals of mediation, the role of the mediator, confidentiality, what happens if the parties come to an agreement,

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and what happens if they do not.11 Each mediator personalizes the opening statement, so that it feels comfortable to the mediator and so that it is tailored to the needs of the parties. As a settlement- focused mediator, Medina might begin with the following statement:

My name is Medina. Your supervisor has asked me to help you settle a conflict that has arisen in recent weeks. Sheryl has not given me the details of your concerns except to say that both of you are considering whether you can work things out through mediation. At this point, all you have committed to is today’s session. If both of you agree to mediate, I will ask you to sign the Agreement to Mediate. [Medina provides copies to the parties.]

As a mediator, my job is to help you discuss your concerns and work toward a solution that both of you can support. I am not a judge, and I am not going to make decisions for you. I may be able to make suggestions, but it is up to the two of you to decide what you want to do. I will do my best to remain impartial. In other words, I will not take sides with either one of you. If you have concerns about my ability to be impartial, please feel free to raise these so we can discuss them. Mediation does not work unless you believe that I am impartial. [Medina pauses to see whether the parties have any questions and to check what their body language may be indicating.]

If you are able to reach agreement, then we will decide how to ensure that both of you are able to fulfill your commitments. This may mean having lawyers draft a legally binding agree- ment. Most often, these types of disputes can be worked out informally. We simply write a letter of understanding. This letter states your expectations, but it is not a legal document. I understand that you do not want legal advice at this time, but we will discuss it again if any legal issues arise.

If you are not able to reach an agreement, then we can discuss other alternatives. I understand there is a possibility that this conflict could go to the Harassment Committee at C- Soft. However, the Agreement to Mediate that I will ask you to sign says that mediation is confidential and privi- leged. I will not share any information with the Harassment Committee, your supervisor, or anyone else at C- Soft. At the end of mediation, you may agree to share certain information to implement the decision. C- Soft has assured me that it will honor your right to confidentiality in mediation. The main exception to confidentiality arises if someone may be at risk of physical harm. I have a profes- sional obligation to take reasonable steps to help prevent the harm from occurring. Even if this comes up, I will try to obtain your consent to disclose information before taking further steps.

You probably have some questions about mediation and some of the things I have just said . . .

Other issues that can be included are the credentials of the mediator, the length of time the parties can expect to spend in mediation, and ground rules for the process (e.g., behavioral guidelines such as one person speaks at a time, everyone will use respectful language, no smoking dur- ing mediation sessions, and everyone will turn off cell phones). Some mediators are direc- tive about the ground rules, indicating that the mediator is in control of the process. Other mediators have the parties suggest ground rules, supporting the clients’ ownership of the process. If there is a high level of conflict at the outset, the parties may be unable to negoti- ate ground rules. Accordingly, the mediator may be wise to provide at least basic ground rules at this phase. Some mediators discuss ground virtues rather than ground rules. Ground virtues identify aspirational qualities or ways of being during the mediation process, for instance, the parties may agree to be respectful, honest, open, patient, and collaborative. To ensure that these commitments are not mere platitudes, the mediator could ask the parties what it means to be respectful and so on. In this manner, the mediator can ensure that both parties truly understand and are committed to implementing the ground virtues. In one mediation, I had one client define respect as “not spitting on the other person,” so both par- ties wisely agreed not to spit on each other.

11 In some jurisdictions, the laws dictate specifically what court- appointed mediators must include in their opening statements.

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Mediators select language that is neutral, positive, and future focused. For example, the introductory statement speaks of “concerns” rather than problems or disputes. The focus is on resolving concerns and coming to agreement, rather than finding out what has happened or determining who is to blame. One of the key goals in the initial phases of mediation is to facilitate positive conditions for problem solving: a spirit of collaboration, a sense of emotional and physical security, and assurance that everyone will be treated with respect, regardless of their culture, history, or roles in the conflict. As the Chapter 1 discussion on mindfulness reminds us, people are better able to problem- solve when they are put at ease.

The introductory statement can be broken down into components to allow the parties to ask questions as the mediator explains various aspects of mediation. Each introductory statement needs to be tailored to the particular situation, including the nature of the dis- pute, the agency’s policies, the clients’ level of language, and the mediator’s model of media- tion. If either party is not fluent in the same language as the mediator, an interpreter should be used from the outset. The interpreter should be independent. Having one party interpret for the other creates a conflict of interest.

The forgoing introductory statement was based on a settlement- focused approach. The following example illustrates verbiage that fits with IBM, focusing on collaboration, com- mon ground, and resolving underlying interests:

Mediation is a nonadversarial process. In other words, I will encourage you to problem solve together. I will begin by asking each of you, “What are your primary concerns?” As you explain where you are coming from, I’ll make sure that we are all on the same page by asking clarifying questions and summarizing your concerns. We will then take this information to develop a list of issues to work on. I will help you prioritize which issues to work on first. For each issue that we address, I’ll help you identify common interests. These are concerns or hopes that both of you share. We will then work on how to resolve these concerns. What types of solutions can we find where both of you are satisfied with the results? There are no winners and losers. Both of you need to be satisfied in order for us to come to an agreement.

As noted earlier, interest- based mediators are less directive than settlement- focused medi- ators. Interest- based mediators emphasize the parties’ ownership of the dispute and any agreements they conclude. Interest- based mediators often highlight the advantages of mediation over adjudication:

Mediation is less formal than the hearings conducted by the Harassment Committee. Mediation allows you to come to your own decisions rather than have someone impose them on you. You are the best judges of how to resolve your concerns. If you are happy with the solution, you are more likely to follow through12 than if a third party, such as the Harassment Committee, imposed a decision on you.

Most mediators have a standard Agreement to Mediate that they ask parties to sign during the first joint session. This gives them the opportunity to review the agreement with their law- yers after their individual sessions. The Agreement to Mediate describes the parties involved, the role of the mediator, the terms of confidentiality and privilege, the issues to be mediated, remuneration for the mediator, and important ground rules. Some mediators include a state- ment about legal advice, clearly establishing they have suggested that the parties obtain inde- pendent legal advice from the outset of the process. The signatures of the parties indicate their commitment to the process. Facilitative mediators could encourage parties to build

12 Research suggests that parties are more likely to follow through on mediated agreements, particularly if they feel the process was fair (Howieson, 2011).

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their own Agreement to Mediate or tailor the mediator’s standard form in order to meet their needs. Negotiating the Agreement to Mediate may be difficult because of the initial level of conflict between the parties, their lack of experience with mediation, and the possibility that they will insist on terms that are inconsistent with the mediator’s model of practice. Medina asks Elvis and Englebert to sign the Agreement to Mediate as per Box III.1.

BOX III.1 AGREEMENT TO MEDIATE

1. PARTIES: Elvis John Cameron and Englebert Younas are employees of Conflictia Software Enterprises (C- Soft) who agree to mediate a conflict that arose between them at work. They agree to act in good faith and to share all relevant information so they can work out an agreement in an amicable manner.

2. MEDIATOR: Medina Sellers has been hired by C- Soft to help employees resolve workplace conflicts. Her role is to help the employees discuss their concerns and work toward an agreement that satisfies both of their interests. Medina will act as an impartial mediator, meaning that she will not side with either employee or make decisions for them.

3. VOLUNTARY: Mediation is a voluntary process. Although C- Soft encourages its employees to resolve disputes in an amicable manner, C- Soft will not impose sanc- tions on the parties for refusing to mediate or for failure to come to an agreement. Either employee may terminate mediation at any time in the process.

4. CONFIDENTIAL AND PRIVILEGED: All information provided by the parties during mediation will be kept confidential and privileged, unless the parties provide express written consent or the mediator is required by law to disclose information (e.g., if a person is put at risk of physical harm). The mediator’s records will not be shared with other employees of the organization. The parties agree that they will not subpoena the mediator or her records for any trial, hearing, or other legal proceeding.

5. AGREEMENT: If the parties reach agreement during mediation, the mediator will write down the terms of the agreement in a letter to the parties. The agreement will not become a legally binding agreement unless the parties agree to have their law- yers draft a formal contract based on the terms set out in the letter.

6. LEGAL ADVICE: The mediator has explained the benefits of independent legal advice to the parties. They have both chosen not to hire lawyers at this time. The mediator will not provide legal advice to the parties but will ensure that they have time to meet with a lawyer during mediation, on their request.

7. FEES: C- Soft will pay the mediator $250 per hour for up to 6 hours of media- tion. If the parties choose to mediate beyond 6 hours, then they will each pay the mediator $120 per hour for any time beyond the initial 6 hours. All fees are due prior to the mediation session.

signed on April 23, 20XX indicating our understanding and agreement to the terms

above:

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

englebert Younas Medina sellers

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

elvis John Cameron

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This Agreement to Mediate is relatively simple, using plain language. Some mediators use more detailed and legalistic agreements. The Agreement to Mediate should reflect the mediator’s approach to mediation and legal issues that may arise in the context of the con- flict. Consider which approach to mediation this document seems to reflect. How would you alter it to suit one of the other approaches to mediation?

Parties who have never mediated before often require repeated explanations of the mediation process. They may be self- absorbed in their feelings about the conflict, making it difficult to focus on the mediator’s explanation of mediation. People frequently confuse mediation with adjudication, thinking the mediator will make decisions for them in spite of the mediator’s opening statement.

If the parties do not agree to participate in mediation, the mediator can help them explore other alternatives to resolving their dispute. Depending on the context, clients may be interested in information about therapy, adjudication, evaluation, or other pro- cesses. To maintain neutrality, the mediator provides information but avoids providing suggestions or opinions. Regardless of whether the parties are interested in other pro- cesses, mediators can leave the door open for parties to return to mediation if they change their minds.

3. Storytelling and Issue Definition

The storytelling and issue definition phase begins with storytelling by each party and concludes with the parties agreeing on the specific issues to be dealt with in mediation. Issues are the ques- tions, matters of concern, or topics that the parties wish to resolve through mediation (Moore, 2014). The issues that the parties initially identify may not be the ones that they eventually agree upon, as the mediator helps the parties frame their concerns in a construc- tive manner.

As the parties tell their stories, they may express anger, frustration, or other strong feel- ings. The mediator absorbs some of the conflict, allowing the parties to ventilate, listen- ing attentively, demonstrating empathy, and avoiding defensive responses. Medina’s earlier assessment suggested that Englebert tends to avoid conflict, only responding more assert- ively when the cause of the conflict has exacerbated. Accordingly, she decides to have him tell his story first. She tells the parties that Englebert will go first since he is the one that originally raised the concerns about what was happening at C- Soft. She reassures Elvis that he will have an equal opportunity to speak. She provides both Elvis and Englebert with paper and pens to write down any thoughts that come to mind as they are listening to the other person. Elvis expresses concern that he is being put on trial. Medina notes the pur- pose of this phase of mediation is to allow each of them to hear what the other is concerned about; she is not going to make any judgments.

If Medina adopted a SFM, she would ask the parties to focus on present concerns. “What concerns do you want to resolve here in mediation?” She would put relatively tight limits on their storytelling or expression of feelings. If Englebert started to discuss why he took a job at C- Soft or how angry he felt when Elvis shaved his head, Medina would acknowledge Englebert’s views but quickly refocus Englebert on what needed to be resolved in media- tion. A settlement- focused mediator wants to get to the crux of the negotiable issues as expeditiously as possible.

If Medina used IBM, she would allow for more storytelling, historical detail, and expres- sion of feelings. She might begin by asking each party, “What concerns bring you to media- tion?” Interest- based mediators are interested in having the parties identify negotiable issues, but they realize giving the parties time to process feelings is an integral part of CR . People need to feel heard— by the mediator and by the other party— in order to be able

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to move forward and negotiate solutions. When people say, “I want my day in court,” they typically mean that they want an objective third person to hear their story. Paradoxically, “getting one’s day in court” is more likely to happen in mediation than court. In court, law- yers and judges control what the parties can say and when. A mediator will use active listen- ing skills to demonstrate empathy, without taking sides. The mediator may also encourage each party to use active listening skills to validate each other’s feelings.

Englebert, thank you for sharing your concerns with us. Elvis, what were some of the main points that you heard from Englebert? You don’t have to agree with him— I am just asking what messages you understand from what he said.

Empathy refers to demonstrating emotional identification or communicating a sense of understanding (Ivey et al., 2014). The active listening skills identified in Chapter 1 form the basis of providing empathy and validation. Whereas most helping professionals use these skills to demonstrate empathy themselves, the mediator’s role is somewhat differ- ent. Mediators teach these skills to the parties so they can demonstrate empathy to one another. Each party learns about the other’s perspective. In the process, they may develop joint understandings.

Englebert tells of 10 different incidents in which Elvis harassed him but does not spe- cifically identify what he wants to deal with in mediation. Given that this is the issue defi- nition phase, Medina helps Englebert clarify which concerns he would like to address in mediation.

From what you’ve been saying , I understand that you believe that Elvis has mistreated you ever since you began working for C- Soft. Now, given all that has happened, what specifically do you think we need to work on during mediation?

Note how the language directs Englebert to identif y issues for work, not positions or possible solutions. Parties often want to move to solutions early in the process. Unfortunately, this may cause them to become entrenched in positions before trust has been built and before the underlying interests have been identified. The process of help- ing parties clarif y interests contributes to their empowerment. If they do not have a clear sense of the issues and their underlying interests, they cannot help but operate out of ignorance.

While settlement- focused mediators keep storytelling relatively brief, more facilitative mediators may encourage parties to share details of their experiences and perceptions. As each person reviews the history of events, the mediator encourages the other person to acknowledge new insights or information. Elvis says that he thought Englebert was con- senting to the hazing process. Elvis tells how surprised and angry he was when his supervi- sor came up to him one day and said a harassment complaint had been laid against him. Englebert believes Elvis is minimizing his actions. He also has trouble believing that Elvis thought he had consented to the hazing. Medina responds:

You think Elvis knew that you were opposed to being hazed. Is there anything Elvis has said today that you did not realize before?

This allows Englebert to acknowledge that he did not know Elvis was shocked and angry when he received the harassment complaint. Elvis has not agreed with Englebert’s points, but he has demonstrated some understanding from Englebert’s perspective. This helps build trust between the parties.

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13 For instance, blame, judgment, anger, or aggressiveness.

Maintaining mediator impartiality can be difficult where, as in the present case, one party is the obvious aggressor and instigator. However, mediation is not about blaming. If Elvis feels judged by the mediator, he is likely to withdraw from the process. The mediator might believe that an appropriate solution includes an apology, compensation, or even punishment. The mediator needs to be aware of these biases and allow the parties to come to their own solutions.

Throughout the storytelling, Medina takes notes to help her identify issues and to keep track of important information from one mediation session to the next. She limits her note- taking so she can give the parties generous eye contact. Further, she does not want to appear as though she is gathering evidence. She allows both parties to see her notes. Her notes are not particularly interesting to either of them, because they do not include any of the media- tor’s interpretations or suggestions.

To help the parties clarify the issues to carry forward in mediation, Medina lists both of their concerns on a flipchart. The issues may be listed as questions or brief bullets to indicate topics to be discussed. As she lists them, she frames the issues so they are positive, mutual, and future- focused (see Exercises 17 and 18 at the end of the chapter for further descriptions of reframing). By framing the issues in this manner, the mediator removes the sting13 from the conflict and sets the stage for collaborative problem solving. Medina lists the issues as follows:

• What to do about the hazing that has already occurred? • Will Englebert press his concerns forward with the Harassment Committee? • What type of work relationship do Englebert and Elvis want, if any? • How will Elvis and Englebert handle any future conflicts at work?

Medina checks to see whether the list of issues is exhaustive, balanced, and clear. She tries to frame the issues as open- ended questions to promote creative problem solving; yes– no ques- tions may limit the parties to thinking there are only two choices. Upon checking complete- ness of the list of issues, Englebert and Elvis say they have no further concerns. For the first issue, Medina tries to reframe “hazing that has already occurred” to “past treatment between Englebert and Elvis.” Englebert objects because he did not mistreat Elvis. Elvis admits to hazing, so he is comfortable with the initial phrasing. Both parties summarize the issues, indicating they have a common understanding about the issues that need to be resolved in mediation. They begin to prioritize which issue to deal with first. The mediator helps the parties identify their priorities, as well as which issues can be resolved more easily. Englebert says that he is not currently planning to take the case to the Harassment Committee, so that issue is not urgent. They agree that the first issue needs to be dealt with first, before they can move on the other issues. Medina believes it would be easier to talk about their relationship first, to help build trust and collaborative spirit. Dealing with easier issues first also fosters momentum of agreement. If she adopted SFM, she might be more directive. However, the more facilitative IBM suggests giving the parties greater control over the process, particularly if they can readily agree on process issues. Medina congratulates them on being able to come to a clear and comprehensive agreement about the issues for mediation.

4. Exploring Needs and Interests

Exploring needs and interests is the crux of IBM. It may also be used SFM, though it may receive less emphasis. During this phase, the mediator encourages both parties to identify their individual interests as well as interests that they have in common. Settlement- focused mediators

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move through this phase quickly, allocating more time to problem solving than to analyzing the problem. To deal with the issue of past hazing, Medina asks each party to identify their own feelings about what has happened. Englebert says he feels embarrassed, degraded, and alienated. Medina explores why he feels embarrassed. Englebert admits that he was not able to confront Elvis directly and had to go to his supervisor for help. He thinks he should have been able to stand up for himself.

Elvis says he is “pissed off ” at Englebert for putting his job in jeopardy when all he was doing was fooling around. Medina validates Elvis’s feelings and explores what is underneath them:

I can see you’re very angry with Englebert. This tells me these issues are very important to you. Besides feeling angry at Englebert, what else do you feel?

Elvis says he’s not into this “touchy- feely stuff.” Medina responds nondefensively:

You don’t need to talk about anything you don’t want to. I’m just wondering , when you men- tioned you were “pissed off,” what exactly were you trying to say?

This gives Elvis the opportunity to say that he was scared he might lose his job over a couple of pranks. If Elvis is still uncomfortable disclosing feelings, the mediator will not push the issue too far.

Medina explores underlying issues concerning how the conflict has affected them at work.

How do you think your coworkers see you? And how has this conflict affected their opinions about you?

Elvis says his coworkers used to respect him. They thought he had a good sense of humor. Once rumors of a harassment case got out, they started to think he was a bully. Englebert, however, always felt his coworkers thought he was a wimp. Having to go to his supervisor for help probably just confirmed this opinion. Englebert starts repeating his life history of being hazed and bullied. Medina refocuses him on the present issues. She explains the process of interest- based negotiations and asks them to identify their underlying interests.

We’ve talked about many different issues. Now, let’s focus on your key interests. When you think about what needs to be done to deal with the hazing that’s already occurred, what is most important to you?

Elvis responds that he wants Englebert to drop the harassment charges and advise their supervisor that they had worked things out. This is a position or solution rather than an interest. Medina helps him explore what interests underlie his suggestion.

When you say you want the harassment charges dropped, why is this important to you?

From this line of questioning, Elvis identifies “job security” as a primary interest. Medina continues the process of helping Elvis and Englebert identify underlying concerns. Eventually, they arrive at the following list:

• job security (financial security) • respect from coworkers

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• respect from each other • an end to the dispute, as soon as possible

They agree that these are mutual interests, although they may have different meanings or levels of importance to each party. Medina writes these on the flipchart and commends them once again for their hard work and good faith.

5. Negotiation and Problem Solving

Negotiation and problem solving are the central foci of the settlement- focused approach, as well as integral parts of IBM. At this point, the mediator has established trust with the parties. They have committed themselves to dealing with particular issues and they have identified their underlying interests. This phase moves them from interests to solutions.

Strategies at this phase include option generation, identifying objective criteria, and draw- ing the parties’ awareness to the cost of nonagreement. These strategies are similar to the material presented in Chapter 6 on interest- based negotiation, except the mediator facili- tates the parties through these processes. For example, both parties have expressed an interest in job security. Medina asks them to brainstorm options for solution. She lists their suggestions: Both parties continue to work for C- Soft; Elvis quits and finds another job; Englebert quits and finds another job; they start their own company; they work for different divisions of the same company; they return to their old jobs; or one of them wins the lottery and they split the winnings. They cannot think of any other options at this time.

Englebert thinks Elvis should quit because he was responsible for the conflict in the first place. Elvis thinks Englebert should quit because Elvis has seniority and Englebert is still on probation. Medina explains the need for objective criteria for decision making.

Each of you has good arguments from your own point of view. What we need is an objec- tive way to analyze this problem. What factors would a complete stranger suggest for how to resolve this issue? Someone who doesn’t know either of you and has no stake in the outcome.

They agree that their decision should be based on two factors: fairness and practicality. They define fairness as equal treatment (Menkel- Meadow & Wheeler, 2004). If one person leaves the job, then both also have to. It would not be very practical for both to leave their jobs, so they agree to work out a solution where both continue to work for the company. They like their jobs and think that they can work things out where they can work together, side by side.

Englebert says that in order for him to gain respect from his colleagues, Elvis needs to get up in front of all of the employees and make a public apology. Elvis rejects this solution out of hand and threatens to terminate the mediation process. Both parties start raising their voices. Medina acknowledges their frustration but notes how hard they have worked to get this far. She suggests a brief break to allow them to regain their composure. A more facilitative mediator might avoid calling a break at this point, giving the parties an oppor- tunity to work through their emotions rather simply trying to calm them down so they can negotiate rationally and unemotionally.

After the break, Medina reviews the process, emphasizing their progress and acknowl- edging their feelings about the impasse. A settlement- focused mediator might be directive at this point, emphasizing the cost of disagreement (their Best Alternatives to a Negotiated Agreement [BATNAs]). In this case, if the parties do not come to an agreement, Englebert’s

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BATNA is to pursue the case through the Harassment Committee. This process could be lengthy, adversarial, and embarrassing to both parties. Neither one knows how the commit- tee would decide this case. An interest- based mediator may also draw the parties’ attention to their BATNAs, but in a less directive or explicit manner. The mediator could encourage the parties themselves to identify the consequences of nonagreement, rather than have the mediator suggest them.

In this case, Elvis and Englebert agree to move forward in mediation. Englebert is reluc- tant to back down from his request for a public apology, feeling that he will look like a wimp once more. Medina offers the following metaphor:14

Have you ever heard the story about the ship that sees a light shining through the fog? As the ship approaches the light, the captain sends a call on his radio: “This is the captain of the USS America. You are headed directly toward us. Please turn your vessel portside to avoid collision.” The reply comes, “I am sorry we cannot oblige. Please divert your course.” As the ship moves closer, the captain becomes more adamant: “We have the right of way. You must alter your course to avoid collision.” The reply comes once more, “I am sorry we cannot oblige. Please divert your course.” As collision is moments away, the captain says desperately, “You must divert your course. This is the USS America.” The reply comes, “You must divert your course. This is a lighthouse.”

The parties chuckle at the joke and then discuss its lesson. Sometimes it is better to back down; getting your own way is not beneficial if it means you will crash and burn.15 Medina reminds them that there is a difference between backing down from a position and back- ing down from an interest. She encourages both parties to pursue their interests, in this instance, the respect of their coworkers. A public apology is one option, but not the only one. Elvis says he respects Englebert for reconsidering this issue. He wants to come up with a solution that works for both of them.

They explore various options and create one that seems to satisfy both parties’ interests. Although Elvis is not prepared to make a public apology, he offers Englebert a sincere apol- ogy in private. They agree to send a memorandum to their coworkers, explaining that they had gone to mediation and come to an amicable agreement. They work through the exact wording of the memorandum and what each of them will disclose orally to their coworkers. They do not want to disclose the full details of the conflict, because both still felt embar- rassed about it.

Mediation continues until they come to tentative agreements about all of the issues in dispute. Some issues become immaterial when other solutions fall into place. By this point in the process, the parties are able to work together, collaboratively, with less direction from the mediator.

6. Finalizing an Agreement

Once an agreement in principle has been reached, the parties must decide how to finalize it: as an informal understanding , as a legally enforceable agreement, or as a court order on consent of the par- ties. This is not a case that has been filed in court, so initiating a case just to secure a court order is not practical. The parties agree that there is no need for a legally binding agreement. They

14 Original source unknown. 15 This story can be used for other lessons, including the importance of listening and clear communication.

Innocent misunderstandings can lead to grave consequences.

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believe the issues are more about their relationship than about their legal rights. The mediator offers them an opportunity to obtain legal advice, but both decline. They opt for an informal understanding that the mediator will summarize in a letter addressed to both parties.

Medina works through the letter with the parties. A settlement- focused mediator is likely to suggest the wording of the informal agreement because this is most expedient. An interest- based mediator is more facilitative and therefore more apt to ask the parties to suggest its wording. Medina uses plain language, avoiding legalese. Her letter includes the following paragraphs:

The purpose of this letter is to summarize my understanding of the terms of the agree- ment you reached in mediation. This is an informal agreement that is not intended to be legally binding. The agreement will work as long as both of you remain committed to it. If there are any problems with the agreement, you may return to mediation to work these out.

Both of you agree to treat each other with respect. To promote a positive working relationship, you have agreed that you will not participate in any hazing rituals at C- Soft. You have also agreed to circulate the attached memorandum to your coworkers. Neither of you will talk to coworkers about other details or issues discussed in mediation.

If either of you has a concern about how the other has treated you, your first step will be to meet with the other in private to discuss your concerns. If the issue cannot be resolved through one- to- one discussions, then either of you may request the help of a supervisor or mediator.

Medina reviews this agreement with the parties to ensure that it reflects their intentions accurately. She asks about potential problems in implementing the agreement. Elvis says that C- Soft needs to consent to distribution of the memorandum before they distribute it to their coworkers. Elvis and Englebert agree to take the agreement to their supervisor to ask for per- mission to circulate the memorandum. If they cannot work out the arrangements with the supervisor, they will contact the mediator to discuss other alternatives. Ideally, the mediation agreement is self- enforcing; that is, the agreement can be enforced by the parties themselves, without the need for a third party to monitor and enforce the agreement. If external monitor- ing or enforcement is needed, methods of enforcement should be specified.

Many mediators let the parties decide whether to return for follow- up. Some facilitative mediators include follow- up as part of their process. Follow- up provides the parties with a time and place to ensure that the agreement is being implemented and to problem- solve any areas of concern. Accordingly, they will schedule a specific time and place for follow- up before dismissing the clients.

The mediator concludes this phase by reinforcing the progress that the parties have made and by offering encouragement to move forward. Settlement- focused mediators reinforce the fact that the parties have come to their own agreement. Interest- based mediators congrat- ulate the parties on being able to work cooperatively and resolve their underlying interests.

7. Follow- up

Follow- up with the parties serves a number of purposes: The mediator can reinforce the parties’ prog- ress; new issues can be mediated; the mediator can refer the parties to additional services, as needed; and the mediator can solicit feedback for research and program development purposes. Facilitative mediators, in particular, recognize that conflict is not over just because an agreement has been reached. Implementation of the agreement can raise a whole new set of issues: resistance from other people or systems; problems with enforcement; frustration or despair when things do

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not work out as well as expected; and conflicts around issues that were not previously expected. Conflict is not necessarily resolved but managed. Ongoing issues are apt to arise, particularly if the parties expect to have an ongoing relationship. Ideally, the parties have gained CR skills through participation in mediation. This enables them to deal with conflict more effectively on their own. Sometimes, the mediator frames the parties’ agreement as a “nonbinding interim16 agreement” or “trial run.” This allows the parties to test whether the trial agreement is working and return to mediation to see if the agreement needs tinkering or more substantial renegotia- tion. Parties who seem headed toward impasse might be more inclined to agree to a trial run than a permanent agreement. If both try to follow the tentative agreement in good faith, they will be better able to reach a more permanent agreement at follow- up.

In general, settlement- focused mediators do not emphasize follow- up. Their goal is to help the parties reach settlement. Still, follow- up could be used to help the parties ensure that settlement endures. In other words, the mediator uses follow- up to monitor compli- ance.17 If there are problems with compliance, the mediator could help the parties mediate a revised agreement or explore different means of enforcement.

For interest- based mediators, the focal points of follow- up are satisfaction and ongo- ing collaboration. If the parties are not satisfied with the agreement, the mediator can help them renegotiate. If the relationship between the parties has soured, the mediator can refo- cus them on the importance of cooperation.

Follow- up acts as a booster session, providing support for their continued efforts and inoc- ulating them against returning to problematic patterns of managing conflict. In the present case, Elvis and Englebert return for follow- up 6 weeks after finalizing their agreement. They review implementation of the agreement, including successes and problems. Englebert reports that distribution of the memorandum and responses to it were positive. Elvis also affirms a more positive work environment at C- Soft. Medina cautions them that there may be rough spots in the future, pre- empting possible disappointment if things did not continue to go so well. She also congratulates them on making their agreement work.

Englebert does have one concern. C- Soft had just issued a policy against hazing new employees. He feels somewhat embarrassed because people were calling this the “Englebert Policy.” Elvis demonstrates recognition by acknowledging how these comments singled out Englebert. As Elvis and Englebert talk about the Englebert policy, they begin to realize that it was nothing to be embarrassed about. Elvis jokes that he is jealous that there was no “Elvis pol- icy.” Elvis and Englebert agree that when people at C- Soft referred to the Englebert policy, they would add, “You mean the Elvis and Englebert policy,” taking pride in ownership of this policy and removing the hurtful connotations that some coworkers may have intended.18 Medina commends them on the progress they had made since their first mediation session.

16 Interim refers to an agreement or court order that is only expected to be followed until a more perma- nent agreement or order is made. Sometimes, interim orders or agreements are made “without prejudice,” meaning that the parties’ rights and obligations are not prejudiced by the terms of the interim order or agreement. If there is a possibility that interim agreements will affect the parties’ rights, ensure that they have access to legal advice before agreeing to the interim arrangement. Consider a divorce situation in which the parents reach an interim agreement stating the children will have temporary residence with their mother. This could create a status quo that would be difficult for the father to contest in the future, because courts are reluctant to change a child’s residence once it has been established.

17 Follow- up could also be pursued by an administrative person from the agency rather than the mediator. 18 This fits with the children’s motto, “Sticks and stones may break my bones, but names will never hurt me.”

Name- calling hurts only if one lets it. Often, minority groups that have been labeled with derogatory terms will take these terms and adopt them as a badge of pride (e.g., gays who accept the moniker “queer”).

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265

This case demonstrates many of the decisions, skills, and activities that comprise media- tion. Some aspects of the process have been abbreviated for demonstration purposes. It is not intended to be “the perfect case.” Each of your own cases will present you with unique clients, diverse issues, varied levels of conflict, and distinct choices for how to implement the seven phases of mediation.

COMPARING MEDIATION WITH INTERVENTIONS OF O THER HELPING PROFESSIONS

One way to gain a deeper understanding of mediation is to learn how the role of a media- tor is similar to and different from other helping professions. For example, is SFM simply a form of legal practice? How is therapeutic or transformative mediation different from ther- apy (Irving & Benjamin, 2002/ 2012; Wall & Spira, 2012)? To what extent do you have to change your skills, strategies, and ethical standards when you switch hats from your original professional identification to that of a mediator? Table III.1 provides a comparison of three professions: mediation, social work, and law. I use the interest- based model of mediation, the generalist model of social work,19 and a traditional adversarial model of law for the pur- poses of demonstrating these comparisons.

Both law and social work view mediation as a possible role that these professions include. However, when you analyze the orientations, values, and methods of the three models as described in Table III.1, significant differences emerge. The traditional role of a lawyer is that of an advocate who pursues the rights and interests of one party involved in a conflict. Similarly, most social workers are used to advocating for particular clients or causes. To assume the role of a mediator, lawyers or social workers must suspend their ori- entation as advocates and become impartial facilitators. Mediators allow clients to nego- tiate on their own behalf. Although mediators support each party’s ability to negotiate, they do not support a particular position or solution. Impartiality is one of the most dif- ficult transitions for advocacy- oriented helping professionals to make when they become mediators.

In terms of values, each of the three professions emphasizes the right of clients to make self- determined choices. They respect individuality and the self- worth of all people. Some people view law as contrary to self- determination because courts impose solutions on parties. However, court is an avenue of last resort, even for lawyers. Preferably, conflicts are resolved through party- to- party or lawyer- led negotiations (Lastovka, 2015). Court is used only when the parties are unable to come to a solution on their own.

The similarities and differences between professions depend on the models of interven- tion being compared. For example, the therapeutic and transformative models of mediation adopt methods that are similar to those used by clinical social workers, psychologists, and other mental health professionals. The settlement- focused model of mediation focuses more on rights and resolving legal issues, similar to the traditional practice of law. As mediation continues to evolve, helping professionals should consider how it relates to their original professional identities and what changes they need to adopt in order to assume the role of a mediator.

19 The Generalist Intervention Model is one of the more popular models of practice taught in schools of social work. This model provides the foundation of knowledge, strategies, and skills that frame many different interventions with individuals, families, groups, organizations, and communities. Generalist social work- ers work with various types of social systems, often focusing on the interactions between these different types of systems.

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TABLE III.1. Comparison of Mediation, Social Work, and Law

Mediation: Interest- Based Model20 Social Work: Generalist Intervention Model21

Law: Traditional Adversarial Model22

Definition A specialized problem- solving process

in which an impartial third party

helps disputing parties try to reach

a mutually acceptable settlement

by facilitating communication and

negotiation between them.

A planned- change framework that guides

practitioners to help clients deal with

biospsychosocial problems issues using

a broad range of knowledge, skills, roles,

and strategies, rather than specializing in a

narrow range of clinical interventions.

An approach to resolving disputes over legal

rights and responsibilities requiring each

attorney to advocate zealously on behalf of

the particular client he or she is serving.

Approaches helps clients deal with conflicts in a

manner that satisfies their underlying

interests.

helps clients cope and adapt to their social

environment, as well as change their social

environment.

provides each client with a specialized

advocate who uses positional negotiation

strategies in hopes of maximizing rights and

gains for the client.

focuses on relationships rather than

rules.

promotes social and economic justice. focuses on rules rather than relationships.

encourages joint problem solving. Incorporates generalist social work

knowledge, skills, and values throughout the

planned- change process.

provides each client with a legal representative

in court who will debate legal rights and

present evidence in favor of the client.

focuses on future. Avoids assigning

blame (restoration; remediation).

focuses on the present and future. Clients

and workers work together in a mutual

relationship to deal with identified problems

for work. focus is on responsibility for

change rather than judging or blaming.

In litigation role, focuses on determining

blame (or legal liability) and innocence (or

superior rights) for past acts.

Makes clients responsible for deciding

how to deal with the conflict.

targets a range of social systems for change,

including individuals (micro), families

and groups (mezzo), and organizations,

communities, and society (macro).

Discourages collaboration. gives attorneys

and judges control over how to deal with the

dispute (even though clients are responsible

for instructing their attorneys how to act).

B arsky, A

llan. C onflict R

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rofessions : N egotiation, M

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acilitation, and R estorative Justice, O

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(continued)

premises Conflict is a natural phenomenon,

dealt with effectively through

collaborative processes.

Client problems relate to interactions and

stresses in various systems, including family,

community, work, and cultural systems.

truth and justice are most likely to emerge in

an adversarial process where each party has a

professional advocate.

Clients should be responsible for

making decisions over matters

affecting themselves.

Clients are often prevented from fulfilling

their potential because of lack of resources,

oppression, and discrimination.

Clients do not have sufficient legal knowledge

and advocacy skills to represent themselves in

a dispute.

Clients are more likely to follow

through on arrangements that they

have discussed and agreed on.

Clients are expert in their own lives

and are capable of handling a range of

biopsychosocial issues on their own.

Disputes should be resolved on the basis of

who has the best arguments, based on current

laws, case precedents, and the most credible

evidence to support a case.

Conflict should be resolved based on

ways to satisfy the clients’ interests

(rather than power, rights. or

precedents).

Clients are more likely to fulfill their

potential if they are allowed to function in

a more supportive environment, which can

include the support of helping professionals.

Constitutional and legal rights protect people

from being coerced or oppressed. lawyers help

by ensuring that these rights are enforced.

Roles Impartial facilitator, intermediary,

negotiation coach, coordinator,

educator (information, not advice).

enabler, mediator, coordinator, general

manager, educator, evaluator, broker,

facilitator, initiator, negotiator, mobilizer,

and advocate.

Advocate, mouthpiece, draftsperson;

interviewer, assessor, advisor, and counselor.

As a mediator, generalist social workers

enhance interactions between individual clients

and systems in their social environments.

(Alternative roles for attorneys include

arbitrator, judge, mediator, legislator, and

policy formation.)

Values and

ethics

self- determination. self- determination. Autonomy and freedom.

empowerment. Belief in the problem- solving capacities of

clients.

equality.

Respect for all people;

nonjudgmental.

Respect for uniqueness and individuality of

clients.

procedural rights (fair trial; innocent until

proven guilty; justice is blind).

B arsky, A

llan. C onflict R

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rofessions : N egotiation, M

ediation, A dvocacy, F

acilitation, and R estorative Justice, O

xford U

niversity P ress, Incorporated, 2017. P

roQ uest E

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Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

Neutral/ impartial third party. Acceptance of and belief in the worth and

dignity of human beings.

full disclosure; sharing information

between parties.

Access to information (education as power). limited disclosure (only what is legally

required).

Confidentiality. Confidentiality. Confidentiality; privacy.

fair negotiation. Access to resources and opportunities to

realize one’s potential.

Justice.

Voluntariness. Ambivalence— tolerates coexistence of

different and opposing attitudes or beliefs.

Right to legal advice. Access to resources.

professional integrity. professional integrity. professional integrity.

Win- win solutions. social relationships. Competition and winning.

Clients have a right to competent

mediators.

Clients have a right to competent social

workers.

Clients have a right to competent lawyers.

focus Conflict between the parties and

others affected by the conflict.

Interface between the person and

environment.

legal rights and obligations.

future. Reciprocal and adaptive processes. Individual entitlements and social

responsibilities.

objective criteria.

problem solving.

Collaboration.

Combating oppression and abuses of power

in social structures (germain & gitterman,

1996).

Accountability for one’s actions.

Client-

professional

Relationship

Clients agree on the definition of

the problem and on the solution;

mediator is impartial.

Client and social worker agree on the

definition of the problem and on the

solution (mutuality).

Client defines the problem and decides upon

the solution, with advice of the lawyer.

Mediator neutrality is crucial to

establishing trust and fairness of the

process.

Worker neutrality and impartiality as part of

“professionalism” are rejected.

lawyers advocate for one party; neutrality is

rejected unless lawyer is acting as a mediator

rather than as an advocate.

Mediator is a reflective practitioner. Worker self- awareness is necessary to

minimize distorted or maladaptive

communication (emphasizes use of

supervision).

Ability to think like a lawyer requires

objectivity, but self- awareness is not

emphasized.

uses neutrality and empathy to

build trust.

uses empathy, genuineness, and

unconditional positive regard to

build trust.

trust depends on integrity and expertise of

lawyer.

Debate as to whether the mediator

needs to ensure a balance of power

between the parties (Mayer et al.,

2012).

Workers have specific obligation to challenge

social and economic injustice, including

oppression and discrimination.

lawyers have special obligations to serve

and protect those who are disadvantaged or

subjected to discrimination.

structure/

phases

• preparation • engagement— Worker builds rapport with

client through outreach, demonstrating

empathy and respect, and explaining

confidentiality and terms of service.

• problem Identification— lawyer helps

identify problem from client’s perspective.

• orientation • Assessment— Worker and client gather

information about clients strengths

and needs in order to jointly determine

problem(s) for work, goals, and priorities.

• option generation— lawyer involves

client in the process of exploring potential

solutions.

TABLE III.1. Continued

B arsky, A

llan. C onflict R

esolution for the H elping P

rofessions : N egotiation, M

ediation, A dvocacy, F

acilitation, and R estorative Justice, O

xford U

niversity P ress, Incorporated, 2017. P

roQ uest E

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Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

Neutral/ impartial third party. Acceptance of and belief in the worth and

dignity of human beings.

full disclosure; sharing information

between parties.

Access to information (education as power). limited disclosure (only what is legally

required).

Confidentiality. Confidentiality. Confidentiality; privacy.

fair negotiation. Access to resources and opportunities to

realize one’s potential.

Justice.

Voluntariness. Ambivalence— tolerates coexistence of

different and opposing attitudes or beliefs.

Right to legal advice. Access to resources.

professional integrity. professional integrity. professional integrity.

Win- win solutions. social relationships. Competition and winning.

Clients have a right to competent

mediators.

Clients have a right to competent social

workers.

Clients have a right to competent lawyers.

focus Conflict between the parties and

others affected by the conflict.

Interface between the person and

environment.

legal rights and obligations.

future. Reciprocal and adaptive processes. Individual entitlements and social

responsibilities.

objective criteria.

problem solving.

Collaboration.

Combating oppression and abuses of power

in social structures (germain & gitterman,

1996).

Accountability for one’s actions.

Client-

professional

Relationship

Clients agree on the definition of

the problem and on the solution;

mediator is impartial.

Client and social worker agree on the

definition of the problem and on the

solution (mutuality).

Client defines the problem and decides upon

the solution, with advice of the lawyer.

Mediator neutrality is crucial to

establishing trust and fairness of the

process.

Worker neutrality and impartiality as part of

“professionalism” are rejected.

lawyers advocate for one party; neutrality is

rejected unless lawyer is acting as a mediator

rather than as an advocate.

Mediator is a reflective practitioner. Worker self- awareness is necessary to

minimize distorted or maladaptive

communication (emphasizes use of

supervision).

Ability to think like a lawyer requires

objectivity, but self- awareness is not

emphasized.

uses neutrality and empathy to

build trust.

uses empathy, genuineness, and

unconditional positive regard to

build trust.

trust depends on integrity and expertise of

lawyer.

Debate as to whether the mediator

needs to ensure a balance of power

between the parties (Mayer et al.,

2012).

Workers have specific obligation to challenge

social and economic injustice, including

oppression and discrimination.

lawyers have special obligations to serve

and protect those who are disadvantaged or

subjected to discrimination.

structure/

phases

• preparation • engagement— Worker builds rapport with

client through outreach, demonstrating

empathy and respect, and explaining

confidentiality and terms of service.

• problem Identification— lawyer helps

identify problem from client’s perspective.

• orientation • Assessment— Worker and client gather

information about clients strengths

and needs in order to jointly determine

problem(s) for work, goals, and priorities.

• option generation— lawyer involves

client in the process of exploring potential

solutions.

(continued)

B arsky, A

llan. C onflict R

esolution for the H elping P

rofessions : N egotiation, M

ediation, A dvocacy, F

acilitation, and R estorative Justice, O

xford U

niversity P ress, Incorporated, 2017. P

roQ uest E

book C entral, http://ebookcentral.proquest.com

/lib/liberty/detail.action?docID =

4792771. C

reated from liberty on 2020-02-16 20:29:36.

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Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

• storytelling and Issue definition • planning— Worker and client determine

best way to proceed.

• Advice— lawyer provides advice based on

client’s concerns and values.

• exploring interests and needs • Implementation— Worker and client

perform the plan (which could include

counseling, advocacy, mediation, problem

solving, referrals, etc.).

• Decisions on Action— lawyer encourages

client to make any decisions that are likely

to have a substantial legal or nonlegal

impact.

• Negotiation and problem solving • evaluation— Worker and client jointly

assess progress on goals and determine

next steps, if any.

• Implementation— lawyer pursues rights of

clients through negotiation or litigation,

as agreed.

• finalizing an agreement • termination— Worker and client work

through any outstanding issues, including

emotional issues and possible referrals.

• follow- up • follow- up— Worker contacts client

to evaluate ongoing results, offer

additional services, and promote ongoing

improvement.

Methods emphasis on relationship and

problem solving.

Dual emphasis on individual and situation. emphasis on problem rather than people;

deductive reasoning.

Attends to cognitive and affective

elements, but focuses on rational

decision making.

Attends to cognitive and affective elements. Attends to legal issues and rational decision

making.

historical material may be part of

storytelling and ventilation, but focus

is on the future.

historical material explored as it becomes

relevant to the client.

historical information may be relevant to

assigning blame, guilt, or responsibility for

compensation.

Mediator controls the process, clients

responsible for the decisions— clear

role boundaries.

Client relationship is integral part of

the helping process. Moderate degree of

mutuality is required.

Client relationship requires trust in lawyer

as expert with professional integrity. Does

not require mutual understanding of the

problem and what needs to be changed.

focus on the parties’ understanding

of the problem and what needs to be

changed.

Mutual understanding of the problem and

what needs to be changed.

lawyer receives instructions from client

about how to act, but ideal situation may be

compromised by power differentials (clients

often defer to expertise of the lawyer).

Contracting is used to submit to

the process— voluntary; consent to

ground rules, etc.

Contracting is essential to client– worker

mutuality.

Intervention geared to change of

roles, relationships, and concrete

issues.

Intervention geared to both personal

adaptation/ change and change in

environment.

Intervention geared to relationship between

disputing parties, or parties with conflicting

rights.

facilitates communication,

negotiating, and problem solving.

Cognitive restructuring, action, and

problem solving.

Negotiating, problem solving— instrumental

orientation.

Cultural issues addressed if they

pertain to underlying interests of the

parties.

understands and acknowledges differences

in age, race, gender, sexual orientation, and

socioeconomic status. Advocates for social

justice.

pursues legal remedies available for

discrimination.

20 For one of the more popular sources on interest- based mediation, see Moore (2014). 21 This column is based on Kirst- Ashman and Hull’s (2015) explanation of the Generalist Intervention Model. 22 Note that this column focuses on a traditional approach to legal advocacy. Many lawyers now use collaborative approaches to practice (see http:// www.mediate.com/

collaborativelaw).

TABLE III.1. Continued

B arsky, A

llan. C onflict R

esolution for the H elping P

rofessions : N egotiation, M

ediation, A dvocacy, F

acilitation, and R estorative Justice, O

xford U

niversity P ress, Incorporated, 2017. P

roQ uest E

book C entral, http://ebookcentral.proquest.com

/lib/liberty/detail.action?docID =

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reated from liberty on 2020-02-16 20:29:36.

http://www.mediate.com/collaborativelaw

271

Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

• storytelling and Issue definition • planning— Worker and client determine

best way to proceed.

• Advice— lawyer provides advice based on

client’s concerns and values.

• exploring interests and needs • Implementation— Worker and client

perform the plan (which could include

counseling, advocacy, mediation, problem

solving, referrals, etc.).

• Decisions on Action— lawyer encourages

client to make any decisions that are likely

to have a substantial legal or nonlegal

impact.

• Negotiation and problem solving • evaluation— Worker and client jointly

assess progress on goals and determine

next steps, if any.

• Implementation— lawyer pursues rights of

clients through negotiation or litigation,

as agreed.

• finalizing an agreement • termination— Worker and client work

through any outstanding issues, including

emotional issues and possible referrals.

• follow- up • follow- up— Worker contacts client

to evaluate ongoing results, offer

additional services, and promote ongoing

improvement.

Methods emphasis on relationship and

problem solving.

Dual emphasis on individual and situation. emphasis on problem rather than people;

deductive reasoning.

Attends to cognitive and affective

elements, but focuses on rational

decision making.

Attends to cognitive and affective elements. Attends to legal issues and rational decision

making.

historical material may be part of

storytelling and ventilation, but focus

is on the future.

historical material explored as it becomes

relevant to the client.

historical information may be relevant to

assigning blame, guilt, or responsibility for

compensation.

Mediator controls the process, clients

responsible for the decisions— clear

role boundaries.

Client relationship is integral part of

the helping process. Moderate degree of

mutuality is required.

Client relationship requires trust in lawyer

as expert with professional integrity. Does

not require mutual understanding of the

problem and what needs to be changed.

focus on the parties’ understanding

of the problem and what needs to be

changed.

Mutual understanding of the problem and

what needs to be changed.

lawyer receives instructions from client

about how to act, but ideal situation may be

compromised by power differentials (clients

often defer to expertise of the lawyer).

Contracting is used to submit to

the process— voluntary; consent to

ground rules, etc.

Contracting is essential to client– worker

mutuality.

Intervention geared to change of

roles, relationships, and concrete

issues.

Intervention geared to both personal

adaptation/ change and change in

environment.

Intervention geared to relationship between

disputing parties, or parties with conflicting

rights.

facilitates communication,

negotiating, and problem solving.

Cognitive restructuring, action, and

problem solving.

Negotiating, problem solving— instrumental

orientation.

Cultural issues addressed if they

pertain to underlying interests of the

parties.

understands and acknowledges differences

in age, race, gender, sexual orientation, and

socioeconomic status. Advocates for social

justice.

pursues legal remedies available for

discrimination.

collaborativelaw).

B arsky, A

llan. C onflict R

esolution for the H elping P

rofessions : N egotiation, M

ediation, A dvocacy, F

acilitation, and R estorative Justice, O

xford U

niversity P ress, Incorporated, 2017. P

roQ uest E

book C entral, http://ebookcentral.proquest.com

/lib/liberty/detail.action?docID =

4792771. C

reated from liberty on 2020-02-16 20:29:36.

http://www.mediate.com/collaborativelaw

272 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s

272

CULTURAL ISSUES

Cultural issues affect mediation practice from a number of perspectives:

• If the conflict is between parties from different cultural backgrounds, the conflict may be based on cross- cultural miscommunication, conflicting cultural values or beliefs, or dividing resources between people from the different cultures.

• If the mediator is not from the same culture as either party, the mediator needs to deter- mine which knowledge, values, and skills are necessary in order to mediate in a culturally appropriate manner.

• Each model of mediation has a number of assumptions that may or may not be valid when working with people from different cultures (Davidheiser, 2008).

The following two sections deal with these concerns by exploring cross- cultural issues between clients, as well as between mediators and clients. Sections 3 to 5 re- examine the value, knowledge, and skill bases of mediation in light of cultural factors.

1. Clients from Differing Cultures

Mediators should be prepared to explore whether the nature of a conflict is rooted in cross- cultural issues. Some mediators are reluctant to explore issues such as prejudice and power because they are afraid about exacerbating the conflict. However, if cultural issues are left brewing below the surface, the parties cannot deal with the real basis of the conflict. Conversely, mediators must be careful not to assume that a conflict is caused by cultural issues simply because the parties come from different cultures. The following strategies may be useful in dealing with cross- cultural issues:

• Use recognition strategies from the transformative paradigm to facilitate understanding, reconcile past miscommunications, and foster mutual respect (Folger et al., 2010).

• Validate different cultural beliefs, values, and ways of doing things, because many conflicts do not have a right and a wrong; reinforce that conflict is a part of diversity (Bercovitch & Foulkes, 2012).

• Separate interests and values; help the parties understand the conflict between their val- ues and focus the problem- solving component of mediation on satisfying interests that exist regardless of their difference in values.23

• Use cultural interpreters to help each party gain better understandings of one another. If clients have lived most of their lives in a homogenous culture, they may have difficulty explaining cultural norms to others in language that they can understand. Cultural inter- preters have had experience with more than one culture, so they have learned how to translate cultural norms from one culture to another.

• If the conflict is based on intergroup conflict, consider group approaches rather than mediation between individuals (see Chapter 9).

Note that conflicts between helping professionals and clients may be rooted in cultural differences, including differences in levels of education, communication styles, and

23 Because values are so deep- rooted, they are difficult if not impossible to change in a brief intervention such as mediation. However, parties can learn to respect one another’s values without having to agree with them.

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273

definitions of successful outcomes (Oetzel & Ting- Toomey, 2013). Consider family members trying to negotiate end- of- life care for an elder parent at a hospice. Professionals serving at the hospice may be using language that is foreign to the family members, unintentionally making them feel patronized, dis- empowered, or frustrated. The mediator can bridge such differences by helping the parties communicate in language that both can understand, checking out assumptions and creating opportunities to correct misunderstandings.

2. Mediator’s Culture

Some proponents of mediation suggest that one of its advantages is that parties can select mediators who come from the same cultural background as themselves. Although this point may be true, it is not necessarily an advantage nor a given (Davidheiser, 2008). Some indi- viduals do prefer to deal with a mediator from their own cultural background: Such media- tors bring an understanding of cultural issues into the mediation process. Furthermore, some people do not like to air their conflicts in the general community. For example, if the parties come from a discriminated group in society, they may distrust mediators from outside their group. Conversely, some people prefer to take their conflicts to professionals outside their community. The cultural group may be small and closely knit. If the parties are concerned about confidentiality, they may believe their privacy is easier to protect with an outside mediator.

All mediators can expect to work with people from different cultures; thus, cultural- spe- cific education and experience are integral parts of professional development. Competence to work with people from one culture does not ensure competence to work with people from other cultures. Cultural competence requires specialized values, knowledge, and skills (Barsky, Este, & Collins, 1996).

3. Values

Two values that are particularly important for mediation with clients from different cul- tures are cultural relativism and respect for individuality. Cultural relativism suggests that no one culture is better or worse than another; they are simply different. Accordingly, media- tors must demonstrate respect for cultures that are different from their own, rather than judge or impose values on them. Respect for individuality suggests that individual differences among people from the same culture must also be respected. Mediators need to caution against stereotypes or other generalizations that ignore diversity within the cultural group.

Contemporary professional mediators value neutrality as a means to build trust with the parties (Moore, 2014). It allows the mediator to maintain objectivity when helping the parties work through their conflicts. Neutrality, however, is not a universal value. For some individuals and groups, demonstrations of neutrality might be seen as the mediator being uncaring or dispassionate. Within some cultural traditions, mediators assume the role of an “insider partial,” rather than “outsider neutral.” Insider partials provide moral guidance or encourage the parties to resolve conflicts in accordance with particular values or laws (Moore, 2014). Parties trust these mediators because of their local connection and moral authority, rather than their neutrality (Svensson & Lindgren, 2013). Although professional mediators from outside the parties’ culture must be wary of imposing values on the parties,

Let us not be blind to our differences—

but let us also direct attention to our

common interest and to the means by

which those differences can be resolved.

And if we cannot end our differences, at

least we can help make the world safe for

diversity. —John F. Kennedy

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a mediator from within the culture may have greater latitude to refer clients to moral prin- ciples accepted within their group. Such mediators should indicate their value biases to the clients up front (e.g., “Because this is an Ismaili mediation center, I may ask you to consider teachings from the Qur’an to help you resolve your concerns”). If the parties consent to a mediator’s biases, then neutrality may not be essential. They may desire a mediator who is more proactive, providing guidance and suggestions.

For an example of “insider partials,” consider traditional Chinese mediators. They live in the same communities as the parties and use their prior knowledge and relationships with the parties to assist with mediation. They use relatively directive strategies: calling for parties to respect each other, encouraging parties to abide by particular Chinese moral prin- ciples, highlighting the negative effects of the conflict on others, and providing parties with resources to resolve their issues. Social harmony and getting along are highly valued in tra- ditional Chinese culture. The mediator speaks on behalf the community, encouraging the parties to resolve issues and maintain harmony (Druckman & Diehl, 2006; Moore, 2014). Although Western, professional mediators might question the ethics of this approach, it may be perfectly appropriate given the cultural context.

4. Knowledge and Process

Knowledge required for cultural competence depends on the context of the conflict. In general, the mediator needs to inquire into how the parties and their cultures view each of the following:

• What constitutes a conflict? • How should conflict be approached? • Which process is most appropriate for intervention? • What constitutes resolution? (LeBaron, 1997)

Consider the following case.

Conflictia High School recently suspended Raphael Florez for acting violently in the schoolyard. The Florez family believes that Raphael, subjected to racist taunting, was justified in defending himself.

To answer questions about conflict with this particular family, the mediator can draw on a number of sources: the family members themselves, cultural interpreters, other help- ing professionals from their community, readings, and research. Mediators tend to view conflict as something to be resolved. Members of the Florez family, however, have expe- rienced ongoing racism. They believe that conflict of this sort needs to be confronted and challenged. To them, resolution sounds as if they are being told to accept the status quo.

In terms of whom to involve in mediation, the mediator needs to identify how the fam- ily members would identify the parties. This family views the affront to Raphael as a family issue rather than an individual one. Accordingly, the mediator should consider involving family members, not just Raphael (Sue, 2006). In some cases, conflict is viewed as a group issue. The mediator may need to involve leaders or representatives of the group.

In terms of how to approach the conflict, the mediator needs to accommodate the school and the family. In this case, the school prefers to deal with conflict through a ratio- nal, structured dialogue. The family is accustomed to more open expression of emotion and informal discussions. The family wants to have a public forum, whereas the school wants to keep the process confidential.

Regarding developing an appropriate process, mediators have three primary options: (1) Use their general model of practice, and try to be sensitive to the needs of

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people from different cultures within the general model; (2) adapt their model to meet the specific needs of the specific cultures; or (3) create a new CR model by learning about the means of CR used traditionally within the culture. For the last alternative, the media- tor works in partnership with the culture to develop the culturally specific approach to CR (LeBaron, 1997; Lederach, 1995). The process becomes more complicated when, as in the present example, the parties come from different cultures.

In this case, the mediator begins by having separate meetings with the family and with the school. This approach enables the mediator to explore their values and beliefs about conflict and the way it should be resolved. The mediator learns that the parties share certain values: Both want the conflict to be resolved, they are looking for a process that is fair, and they define fairness as having a mediator who does not take sides. Where the mediator identifies contradictory values or beliefs, the mediator will have to make tough choices. Believing that it will be more difficult to engage the family, the mediator decides to tailor some of the process to their needs. Also, the school is represented by teachers and the prin- cipal, professionals who should be self- aware and willing to make accommodations for the family. The mediator develops and proposes a hybrid process to the family and the school. The mediation process is voluntary. Mediation only proceeds if both parties consent to the process.

5. Skills

Culturally competent mediators adapt their use of skills to the needs of different groups. This requires an understanding of the group’s norms of communication and CR styles (Irving & Benjamin, 1995). The following mediator skills are particularly useful for situa- tions where the parties’ culture is different from that of the mediator:

• Check out assumptions on meanings of terms and phrases. • Present issues or ideas as they are perceived from the parties’ perspectives. • Use short, clear sentences. • Use concrete examples and specific language (Kirst- Ashman & Hull, 2015). • Avoid idiomatic expressions, mixed messages, abstractions, or unfamiliar terms. • Use appropriate self- disclosure to help build a positive working relationship. • Indicate appreciation and respect for the dignity of the parties and the groups to which

they belong. • Promote an environment that allows for sharing of selected (appropriate) cultural

information. • Tolerate ambiguity. • On making an interactive mistake, acknowledge it in a nondefensive manner (e.g., apolo-

gize, acknowledge your limitations, indicate your intent to learn how to avoid mistakes in the future).

• Acknowledge differences in beliefs, values, and norms (Saunders, Haskins, & Vasquez, 2015).

• Make tentative suggestions (“I wonder if …”). • Acknowledge interest in and unfamiliarity with the parties’ culture. • Recognize that the parties know more than the mediator about their culture. • Thank parties for helping the mediator understand the parties’ culture. • Ask about the parties’ natural or informal support systems (including who is involved in

making different types of decisions).

Mediators can expect to invest considerable time in order to learn how to work effectively with clients from a different culture. Fostering cultural competence is an ongoing journey

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of developing knowledge, values, awareness, and skills through experience, feedback, read- ing, and reflection (Saunders et al., 2015). Conflict occurs not only between the two par- ties, but also between each party and the mediator. Mediators can make positive use of conflict with the parties by modeling CR skills.

KEY POINTS

• The fundamental role of a mediator is to provide parties with support so they can negoti- ate more effectively.

• Mediation can be provided by both professionals and nonprofessionals, although each may operate on different assumptions about the nature of mediation and the appropriate roles of a mediator.

• A professional’s choice of approaches to mediation depends on the professional’s value base, agency mandate, professional role, client preferences, and how the mediator views success.

• Settlement- focused mediators use a relatively directive process to encourage agree- ment between parties, encouraging them to settle manifest conflict in an expeditious manner.

• Interest- based mediators use a facilitative process to engage the parties in a joint problem- solving process to help them resolve the conflict and their underlying interests in a mutu- ally satisfactory manner.

• Therapeutic mediators assist parties with emotional and relational issues to help them resolve conflicts and interact more effectively.

• Transformative mediators foster empowerment and recognition between the parties, helping them change the way they deal with conflict.

• When selecting and implementing a model of mediation, mediators need to consider the following issues: voluntary or coerced participation, neutrality, impartiality, fairness, power imbalances, confidentiality, and definitions of successful mediation.

• Helping professionals can act as emergent or contractual mediators in a range of con- texts, including family, mental health, cross- cultural, criminal justice, workplace, public policy, and community conflicts.

• Mediation can be broken down into seven phases: preparation, orientation, storytell- ing and issue definition, exploring interests and needs, negotiating and problem solving, finalizing an agreement, and follow- up.

• To switch from one’s conventional helping role to the role of mediator, a helping profes- sional needs to identify key differences in skills, strategies, values, and manners of inter- action with clients.

• When working with people from different cultural backgrounds, mediators need to decide whether to use a standard model of mediation, adapt their standard model, or develop a culturally specific model.

• Cultural competence in mediation requires that mediators develop knowledge, values, self- awareness, and skills to be able to work with people from specific cultural groups.

DISCUSSION QUESTIONS AND EXERCISES

1. MINDFULNESS AND MEDIATION: How can mindfulness (described in Chapter 1) be used to help mediators act in a neutral or impartial manner? What are the connec- tions between neutrality, nonjudgmentalism, awareness, and presence? Consider a mediator who has an impulse to agree with one side or evaluate which option is best for

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the parties. How can meditation be used to help the mediator remain open to all stories and opinions, without judging or identifying with one party?

2. MEDIATION SUCCESS: Identify a conflict situation in which you see yourself as a potential mediator. As a mediator, what would your goals for mediation be in these circumstances? Refer back to your answers to Exercise 2, “Negotiation Success,” in Module II. Are there any differences between how you view success as a mediator and success as a negotiator? Does it depend on the context of the conflict?

3. ISSUE DEFINITION: In a middle school conflict, Stephany accuses Barb of bullying her, excluding her from participating in group projects and spreading rumors that she has lice. She says Barb should be expelled from school. Barb denies all these allega- tions, although she does believe Stephany is “ratched.” Barb claims Stephany is jeal- ous because Barb was voted class president in a contest with Stephany. Barb suggests Stephany would be a lot more popular if she stopped “ratting out” her classmates. As a mediator, how might you identify issues in a manner that is positive, future focused, unbiased, and invites both parties to problem- solve collaboratively.

4. MEDIATOR VALUES: As a mediator, what are your primary values? List your top five in order of priority. Consider the following, but feel free to add your own: safety, fairness, respect for all individuals, empowerment, neutrality, autonomy, access to resources, harmony, change, privacy, competence, and mutual understanding.

5. IMPARTIALITY DILEMMA: You are facilitating a play therapy group for 6- year- olds who have experienced physical abuse from their parents. During the third session, two children start to fight over one of the puppets. You decide to use your mediative skills to help them resolve this conflict. You encourage them to come up with their own deci- sion rather than impose one on them. You are able to help them work toward a mutually agreeable solution: Rip the puppet into small pieces so neither of them can fight over it any- more. You personally find this solution troubling because it is violent and destructive. Still, you have encouraged the children to develop their own solution. Do you support their decision or direct them to a different type of solution? What factors do you con- sider in making your decision?

6. ALTERNATIVE APPROACHES: This chapter introduces four approaches to media- tion. There are many other models of mediation and mediation- like interventions— for example, narrative mediation (Winslade & Monk, 2008); mediating dangerously (Cloke, 2001); Milanese family mediation (Fong, 2005); Native North American healing circles (Hamlin & Darling, 2012; tepung tawar in Sumatra, Indonesia (Alfitri & Hambali, 2013); ho’oponopono in Hawaii (Dupree, 2012); and sulha in Arab com- munities (Moore, 2014; Pely, 2011). Select one of these models. Conduct a literature review on this model to identify its key assumptions, components, and strategies. Compare this model to one of the approaches analyzed in this chapter.

7. CRITIQUING MEDIATION: Review the mediation case illustration between Englebert and Elvis. Select one phase of the process. Identify the strengths and limi- tations of how Medina handled this phase. What other issues, interests, options, and alternatives could have been considered?

8. CONFIDENTIAL OR NONCONFIDENTIAL: The examples of an opening statement and Agreement to Mediate in Elvis and Englebert’s case describe confidential mediation (which some jurisdictions call closed mediation). In confidential mediation, information from the mediation cannot be used for court or other purposes. The parties are agreeing that the mediator and the mediator’s files cannot be subpoenaed. If the parties agree to nonconfidential mediation (sometimes called open mediation), then either party can use information from the mediation in other processes, particularly if the parties do not come to a full agreement. In nonconfidential mediation, the mediator provides a

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report at the end of the process, summarizing the issues, underlying interests, and final offers or positions on the issues. The mediator does not provide recommendations. The parties can give the report to a judge, arbitrator, or other professional who may be hired to help them resolve their conflict. What are the advantages of confidential mediation? What are the advantages of nonconfidential mediation?

9. CAUCUSING DILEMMA: Some mediators never meet individually with the parties. Others meet with the parties individually to screen for safety issues, to help with power balancing, or to help parties resolve an impasse. What happens if a party shares impor- tant information with the mediator but refuses to allow the mediator to disclose it to the other party? Under what circumstances should the mediator disclose the infor- mation? When should the mediator keep the information confidential? How can the mediator pre- empt this sort of dilemma (Menkel- Meadow et al., 2005)?

10. BALANCING ACT: Simon is a student at Conflictia High School. He recently suffered a concussion and is having trouble with exams. Simon’s parents request accommoda- tions because of his brain injury, but the teachers do not think he needs any. During mediation between Simon’s parents and teachers, the mediator discovers the parents are unaware of Simon’s rights and the school’s legal obligations for students with dis- abilities. How could the mediator balance power by providing them with access to needed information without losing her neutrality?

11. CONTRASTS: Earlier in the chapter, I provided a comparison between mediation, social work, and law. To conduct a similar analysis, select an approach to media- tion (e.g., transformative, narrative, or therapeutic) and a model of intervention from your own profession (e.g., cognitive restructuring, solution- focused therapy, strategic family therapy, structured family therapy, dialectical behavioral therapy, radical social work, andragogy, restorative justice, Leininger’s transcultural nursing model, or feminist counseling). Using a chart similar to that in Table III.1, compare these two models in terms of their definitions, approaches, premises, roles, values and ethics, focus, client– professional relationship, and structure. W hich roles, eth- ics, premises, and so on, can you transfer from your original profession to media- tion? W hat are the key changes you need to make when you undertake the role of a mediator?

12. COMEDIATION: Comediation refers to mediation conducted by two or more media- tors. Identify the advantages and disadvantages of comediation. Under what circum- stances is comediation advisable?

13. DEAL WITH THE DEVIL: Andrew is addicted to alcohol. One evening, he finds himself without cash or alcohol. Suffering from withdrawal symptoms, he screams out, “I’d sell my soul for a 12- pack of beer.” Suddenly, the Devil appears. The Devil says, “I’ll give you a six- pack for your soul.” They haggle back and forth but are unable to come up with an agreement. They decide to hire you as their mediator. What ethical issues are raised by this case? How would you handle them? What techniques could you use to balance power between the parties?

14. CULTURAL VALUES DILEMMA: As a mediator, you respect your clients’ right to self- determination and their cultural diversity. You also believe in cultural relativism. Consider a case in which all the clients come from the same culture, but that culture is different from your own. The conflict is a noise- related dispute between two couples who live in adjacent apartments. During mediation, the husbands speak on behalf of their wives, even though the primary conflict occurred between the women. According to their culture, women are not permitted to speak directly with the mediator or with men other than their husbands. You find this cultural norm to be discriminatory. How do you reconcile your values and deal with this situation?

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15. CULTURAL HETEROGENEITY: In Exercise 14, you are asked to consider clients who “come from the same culture.” Although there are similarities between people from the same culture, there are also differences (e.g., people from diverse subcultures, people with different personalities, people with unique life experiences). Conversely, there are often more similarities between people from different cultures than differ- ences. How should a mediator use information about culture without falling into the traps of stereotyping and overgeneralizing?

16. PEACEMAKING AND GENDER: Which gender attributes are more compatible with the role of a mediator, male or female? Which male attributes are associated with being a good mediator? Which female attributes might contribute to a woman’s ability to act as a mediator (D. M. Kolb & Williams, 2003)?

17. REFRAMING: Reframing refers to looking at a situation from a different context or perspective. Consider how a painting changes appearances when you change its frame or how different people look if you view them face- to- face as opposed to from an aerial view. To illustrate, consider the following illustration:

Count the number of squares. Write down the number of squares that you see. Ask others in the class to do the same. Compare answers. If there are any differences, how do you account for these? Is there only one right answer?

18. REFRAMING, THE SEQUEL: Reframing is a key skill in mediation. One method for reframing is to restate what someone has said (a) to express it in positive terms, (b) to eliminate blame or accusation, (c) to identify underlying concerns, fears, interests, needs, values, or goals, or (d) to identify common ground. The following structures can be used to implement this method:

• “You seem to feel …” (identifying an underlying concern or fear; showing you understand how the person feels)

• “Both of you/ All of us …” (identifying a mutual interest, need, value, or goal) • “Why don’t we …” (suggesting a problem- solving approach)

To be effective, the reframe must be genuine. If it does not ring true for the other person, then that person is apt to reject the reframe. To practice reframing, try using these sugges- tions to develop an appropriate response for each of the following scenarios.

Example: During mediation between Leo and Leona (two coworkers), Leona says, “You’re a racist, male chauvinist pig.” How could the mediator reframe this in a more posi- tive tone, without ignoring or minimizing Leona’s primary concerns?

Reframe: “Leona, I can hear that you’re quite angry with Leo. … [pause for response] Both of you are planning on working for this company for a long time. Would both of you agree that it’s important to develop a more respectful working relationship? [pause for response] Perhaps we could talk about how to ensure that this is a safe and comfortable place to work, regardless of one’s sex or ethnocultural background.”

a. In a divorce mediation where the primary residence of the children is in issue, one parent tells the other, “You’re wrong. The children need to live with me.” How could the mediator reframe this?

b. At a case conference, agency staff members are debating whether to admit a client for services even though he is an undocumented alien. Agency policy suggests that

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they only provide services to current citizens. One professional argues, “If we can’t offer service to this client, then we might as well close up shop.” How could the chair of the meeting reframe this?

c. A clinical supervisor is having a meeting with a client and a therapist. The client is upset about how she has been treated by the therapist. The client yells, “Two thou- sand therapists in this city, and I ended up with you!” How could the supervisor reframe the client’s statement?

d. A mediator in a child protection case has a client who seems resistant to any kind of help. The mediator wants to say, “If you’re not going to cooperate, then I really can’t help you.” How could the mediator reframe this thought in a more positive fashion?

e. A client barks to an intake worker, “What do you mean there’s a 6- month waiting list?” How could the intake worker reframe this concern?

f. Two residents in a nursing home, Juan and Talina, are arguing over which show to watch on the communal television. Juan says he has the remote control so he gets to decide. Talina responds, “ W ho made you dictator?” How could a staff member reframe this exchange and encourage the parties to focus on a mutual concern?

g. A student who is concerned about getting a B on a test tells her professor, “I get A’s in all my other classes.” How could the professor respond to this, using a reframe?

h. During a meeting of the Student Representative Council, one student says, “This council is useless. You never get anything done.” How could the council president respond, using a reframe?

19. REPACKAGING PROPOSALS FROM LOSS TO GAIN: According to the concept of loss aversion, people often accept risks to avoid a loss, but avoid risks when faced with a gain. Accordingly, people are more likely to risk going to court to avoid a loss but less likely to go to court if they perceive a gain that they might lose in court. This means that mediators can help parties accept an offer by repackaging offers that sound like losses into gains (Dubler & Liebman, 2004). In other words, putting a positive spin on the offer helps to make it more acceptable to the other party. Try repackaging the following proposals from losses into gains. Example:

ETHEL’S INITIAL PROPOSAL: Fred must turn off his stereo by 10 pm. REPACKAGED: Fred may enjoy playing his stereo until 10 pm.

Proposals to be repackaged: a. Matilda will sell the house and give half the proceeds of sale to Gus. b. Estaban will give up his claim to compensation for emotional pain if NotoCorp

gives him his job back. c. As punishment for breaching confidentiality rules under the Conflictian

Psychotherapy Association’s Code of Ethics, Sabrina agrees not to practice psycho- therapy for 2 years.

20. MEMORANDUM OF UNDERSTANDING: Consider the following memorandum of understanding, written by a mediator in a case between a mental health patient and a long- term care facility:

The parties of the first part and of the second part hereby agree that Mr. Paul Paterson will stop harassing the nursing staff by calling them in the middle of the night for trivial matters. If Mr. Paterson continues this immature behavior, he will be immediately discharged from the Shady Firs Residence. The residence accepts no responsibility for Mr. Paterson’s welfare should the Residence need to discharge

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Mr. Paterson. The mediator will determine any future disputes so there will be no further fighting.

Critique this memorandum (identifying its strengths and limitations) according to the fol- lowing criteria: clear, plain language; balanced and impartial; future focused; nonjudgmen- tal; and sufficient detail so parties know what is expected of each. Rewrite the memorandum in a way that deals with the limitations you have identified. Feel free to use your creativity.

ROLE- PL AYS: GENERAL INSTRUCTIONS

The following role- play exercises are designed to help you practice each phase of the media- tion process. Each of the first seven role- play descriptions includes an inventory of skills and activities that fit with the particular phase of mediation.24 You will use different skills or emphasize them in different ways, depending on the approach to mediation that you are using. For learning purposes, select an approach that you want to learn and then identify the skills and activities that you want to focus on. When you are mediating with real clients, your choice of approaches, skills, and activities will depend on your agency mandate, the dynamics between the parties, the issues to be resolved, the wishes of the parties, and how you and the parties define success.

These inventories can also be used as a checklist for professional development and self- evaluation purposes.25 Mark “C” for each area of competence and “W ” for each area requir- ing more work. Use the exercises in this course to practice the W ’s. If you are using these inventories to give others feedback on their mediation skills, identify positive examples of how they used different skills. For areas where they could use help, suggest alternatives that you might have tried.

The reason that each of the following mediation role- plays focus on a distinct phase is to facilitate learning. As you are learning new skills, it is easier to try to master the process one phase at a time. In practice, experienced mediators will not follow the phases in a linear fashion. There are many overlaps between phases and the skills required for various phases. Assessment of power and safety issues, for instance, occurs on an ongoing basis. In addi- tion, mediators often circle back and forth between phases. If parties seem to be getting stuck at one phase, the mediator may loop back to an earlier phase or jump ahead to a later phase. As you become more familiar with the various components of mediation, you will learn to integrate them more flexibly.

ROLE- PL AY MIII.1: “BOUNDARY CONFLICT”— PREPARATION PHASE

Mary- Hanna is a mental health counselor who has been providing psychotherapy to Phinea (19 years old), a university student who has been seeking assistance for help with social anxiety issues. As part of the intervention plan, Mary- Hanna has been giving Phinea therapeutic massages to help her relax. When Phinea’s father, Fred, discovers that Mary- Hanna was “groping” his daughter during so- called therapy, he goes ballistic. He calls Mary- Hanna, threatening to sue her for malpractice, specifically for violating professional standards related to appropriate physical touch, sexual relations with clients, professional

24 The skills in the inventories are drawn from the following resources: English and Neilson (2004); S. Goldberg and Shaw (2007); Irving and Benjamin (2002/ 2012); Lewicki et al. (2010); and Moore (2014).

25 For competencies specific to family mediation, see Chapter 8.

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competence, and dual relationships. Fred says he wants $500,000 in compensation and an order banning Mary- Hanna from practicing psychotherapy ever again. Mary- Hanna con- tacts her attorney, Amanda, for advice on how to handle this situation. Amanda suggests that they try mediation to keep this matter private and to prevent this case from going to court. Initially, Fred says he does not trust mediation. He suggests they would be better to go to court. Phinea says she likes Mary- Hanna and does not want make trouble for her. Fred suggests they talk to Malcolm, a mediator who specializes in malpractice cases. Fred and Phinea agree to speak with Malcolm to learn more about mediation. They remain uncertain about actually participating in mediation.

For this preparation phase role- play, Malcolm will meet jointly with Phinea and Fred. Malcolm should select three or four items from the following inventory to focus on for this role- play (Box III.2). Also, Michael should identify whether to offer SFM or IBM, so he can answer any questions about mediation that the parties or their attorneys may ask.

BOX III.2 INVENTORY OF SKILLS AND ACTIVITIES FOR

THE PREPARATION PHASE

1. Receives referral

2. Makes contact with the parties

3. screens for safety issues and appropriateness for mediation

4. If situation not appropriate for mediation, explores alternatives and develops

safety plan, if needed

5. Decides whether to meet individually with parties first (for further screening, to

allow parties to ventilate in privacy, to help prepare them for negotiation, etc.)

6. Arranges for interaction between the parties (together, shuttle mediation,26 use of

telephone, or other distance technologies)

7. Chooses and arranges the meeting space/ environment conducive to mediation

(quiet, neutral, comfortable, soothing, fun, creative, spiritual)

8. ensures that parties have access to legal advice, particularly where the decisions to

be made have significant legal consequences

9. speaks with lawyers or other parties who may have an influence over decision

making, with permission of the parties (to explain mediation and obtain their

support for the process)

10. obtains agreement about who will participate in mediation

11. provides parties with written information explaining mediation (e.g., brochure,

Agreement to Mediate, website)

12. Builds parties’ confidence in the mediation process

26 Shuttle mediation refers to meeting with the parties individually and shuttling between them. The two par- ties could be in separate rooms at the same time, with the mediator moving back and forth between them. Alternatively, the mediator could meet with the parties at separate times. Shuttle mediation may be used when there are safety issues, when the parties refuse to meet face- to- face, or where slowing down the pro- cess is needed to help the parties to cool off.

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Debriefing : Which preparation phase skills and activities did Malcolm use most effectively? What challenges did Malcolm face when meeting with Phinea and Fred? How did he try to handle them? Given the information that Malcolm gathered in the role- play, is mediation appropriate for these clients? If yes, what does Malcolm need to do (if anything) to ensure that mediation is safe and fair? If no, why is mediation inappropriate?

ROLE- PL AY MIII.2: “PARKING PERIL S”— ORIENTATION TO MEDIATION

Victor (Victoria) is a volunteer mediator for a community dispute resolution program in Conflictia. A police officer, Sgt. Pullitzer, has referred two neighbors— Nora and Nelly— to mediation in order to resolve their “parking feud.” Over the past month, Nora has called the police on six occasions to complain that Nelly was parking in front of Nora’s driveway. Nelly claims Nora lets the air out of her tires if she parks within 12 feet of her driveway. For this role- play, Victor will meet Nelly and Nora for the first mediation session. Assume Victor had no prior contact with the parties.

To prepare, Victor should plan an opening statement using some of the topics identi- fied in the inventory shown in Box III.3. He could create crib notes to ensure that he covers the key points, but he should not read a script. The opening statement should reflect one particular approach to mediation (e.g., interest- based, settlement focused, or whichever approach that the person playing Victor wants to learn). Victor should ensure eye contact with both parties and remain flexible, answering questions of the parties that may arise. Nora and Nelly should be relatively cooperative with Victor. Periodically, one or the other could interrupt by asking naïve or pointed questions (e.g., “What type of meditation do you practice?” “What happens if I need to go to the restroom?” “When are you going to decide who is right and who is wrong?” “How do I know you’re not going to side with her?”). The main learning goal for this role- play, however, is for the mediator to become comfortable with the orientation phase of mediation. Do not go into storytelling or problem solving.

BOX III.3 INVENTORY OF SKILLS AND ACTIVITIES FOR

THE ORIENTATION PHASE

1. Engages parties and introduces mediation process: • puts clients at ease (welcomes, introduces self and parties, reassures, attends to

potential sources of anxiety)

• fosters rapport and trust with clients (demonstrates genuineness, uncondi-

tional positive regard, empathic understanding, patience, impartiality, concern,

optimism, and active listening skills)

• explains the mediation process (clarifies the structure, purposes, how media-

tion differs from court or therapy, role of mediator, mediator credentials, role of

the parties, and what happens if a tentative agreement is reached or not reached)

• Asserts control over process while also emphasizing the parties’ responsibility

for decision making

• Identifies timing (beginning, duration, possibility of future meetings) 2. Describes standards of practice in terms understandable to parties:

• Neutrality or impartiality

• Confidentiality and exceptions

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• Communication with parties, their lawyers, or other parties

• use of caucusing (meeting individually with parties during mediation)

• safety issues

• Voluntary involvement (including ability to withdraw or terminate) 3. Obtains parties’ agreement and commitment to mediation:

• Clarifies the terms of the Agreement to Mediate (the retainer or contract for the

mediator’s services, including fees or how mediator will be paid)

• Develops ground rules or process guidelines with the parties (e.g., being open

and honest, one person speaks at a time, use of notes, use of respectful lan-

guage, no smoking, protocol for calling breaks, phones off during sessions, and

other terms that the parties agree on)

• encourages informed commitment to the process (including commitment of

time, effort, and good faith)

• Responds to questions about the mediation process and agreement

• Reaches agreement to mediate (written or oral agreement)

• Congratulates or thanks the parties on their decision to commit to the process 4. Assesses:

• screens candidates for suitability— readiness, balance of power, safety, ability to

negotiate fairly (considering impact of any mental illness, substance abuse, etc.)

• Assesses power dynamics between parties and possible need for power

balancing

• Assesses cultural factors that may affect the process: values, preferred ways of

dealing with conflict, traditions related to the subject of the conflict

• Determines need for further premediation interventions (if any)

• Identifies motivations of parties for mediating (e.g., hopes, mutual interests, fears)

• obtains preliminary information about presenting problem (may do this at

beginning or toward end of this phase)

• Assesses the nature of the conflict (e.g., difference of understandings, ideolo-

gies, or interests; miscommunication) 5. Prepares parties for how to negotiate effectively during mediation:

• Coaches parties (e.g., how to be flexible on interests, how to manage emotions,

and how to think creatively)

• encourages positive expectations of the mediation process

• frames conflict as a problem to be solved

• empowers clients (e.g., supporting their negotiating skills, giving each a fair

opportunity to speak, reinforcing their strengths)

• Clarifies the agenda, and invites parties to commit to it 6. Elicits and manages concerns of the parties

• Invites feedback from the parties (doubts, questions, suggestions)

• If a party expresses reluctance to mediate, explores why (in joint session or in

caucus)

• If parties do not agree to mediate, explores alternatives with parties and rein-

forces that the parties are in the best position to decide on how to proceed

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Debriefing : Which orientation skills and topics did Victor (Victoria) demonstrate well? Give examples of what he or she said. What challenges arose in the orientation phase? How did the mediator handle these challenges?

ROLE- PL AY MIII.3: “MUTUALLY NOISY NEIGHBORS”— STORY TELLING AND ISSUE DEFINITION

This role- play involves a community mediator, Coco, and two neighbors, Ms. Juliette Thibault and Mr. Omar. In the 2 months since Ms. Thibault moved into the apartment unit directly above Mr. Omar’s, they have been embroiled in a bitter dispute. Mr. Omar is a 78- year- old widower who has lived in his apartment for more than 20 years. Ms. Thibault is a 22- year- old university student. She has made several complaints to Mr. Omar about the noise coming from his apartment. Mr. Omar has a hearing impairment. He raises the vol- ume on his TV or radio to be able to hear them. Mr. Omar likes to go to bed early and wake up early. Mr. Omar keeps the TV or radio on all the time because he likes the company; also, it is his only way of keeping up with what’s going on in the community.

Ms. Thibault is away at school during the afternoon, but she likes to work at home in the morning and in the evening. She finds it difficult to study with Mr. Omar’s noise, but she needs to work at home because that is where her computer and her books are. She is also awakened early (about 5:30 am) when Mr. Omar gets up and turns on the radio. Ms. Thibault has told Mr. Omar about the problem several times, but he continues to leave the volumes at the same levels. In frustration, Ms. Thibault has begun to respond by playing heavy metal at blaring levels or by stamping on her parquet floors. When this happens, Mr. Omar just raises the volume of his TV or radio. With the escalating noise war, other neighbors have complained to the building manager, Manny. Manny has told Mr. Omar and Ms. Thibault to get together to work it out themselves. Management does not want to hear any more problems from either of them. Ms. Thibault and Mr. Omar agree to go to the Conflictia Mediation Center, on neutral ground, to try to work out a solution.

This case can be role- played using a variety of negotiation styles: hard, soft, positional, chicken, compromising, tit- for- tat, interest based. Mr. Omar and Ms. Thibault should each select a style and not disclose it to the others. In preparing for the role- play, they should write down examples of tactics and strategies they will use in playing their designated negotiation style (refer back to Chapter 1 for conflict styles and to Module II for approaches to negotiation).

The main purpose of this role- play is to give the person playing the mediator practice at the storytelling and issue definition phase of the mediation process. Coco should select an approach to mediation (settlement- focused or interest- based) and use the inventory in Box III.4 to prepare for this role- play. Assume that Coco has introduced the parties to mediation. She will move onto the issue definition phase with a statement such as “Now that everyone has agreed to mediate, let’s begin by hearing what brings you to mediation and what you want to accomplish here.”

BOX III.4 INVENTORY OF SKILLS AND ACTIVITIES FOR

THE STORYTELLING AND ISSUE DEFINITION PHASE

1. Facilitates storytelling and listening: • provides rationale for “who goes first”

• Allows each party the opportunity to his or her story (encouraging them to

focus on concerns and required background information, rather than posi-

tions or options for solution)

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Debriefing : What issues did the mediator discern from this session? What were each party’s original positions on each issue? Identify three strengths of the mediator’s performance, using the inventory for the storytelling and issue definition phase. Identify one additional skill or activity that the mediator could have demonstrated.

Role- Play MIII.4: “Fractious Team”— Exploring Interests and Needs

This is a role- play between Norman (a nurse), Sonia (a social worker), and Penelope (a psy- chologist who will assume the role of an emergent mediator). These three professionals work on a specialized, interdisciplinary team at Conflictia Hope Hospital. The team provides assess- ments and supportive interventions for children who are suspected of having been sexually abused. Norman and Sonia personally cannot stand one another. Norman sees Sonia as arro- gant, uncooperative, and indecisive. Sonia sees Norman as petty and backstabbing. Recently, they returned a child (Chelsey) home with her parents. Chelsey was abused further. Norman told administration that he had nothing to do with the case, laying blame at Sonia’s feet. During a case conference regarding another family (the Farqhuars), Norman and Sonia start arguing about Chelsey’s case. Penelope gets caught in the crossfire and tries to use her mediative skills.

Because Penelope is not a contractual mediator, there is no formal introduction or Agreement to Mediate. The parties should begin the role- play with Norman and Sonia arguing about who is at fault. The focus of this role- play is to explore the parties’ interests

• Allows parties to ventilate feelings and express concerns

• puts appropriate limits on storytelling and expression of feelings

• helps parties communicate through use of clarification questions

• Assures each party hears and understands the others (e.g., encourages each party

to use active listening skills to reflect back or summarize what the other has said;

helps parties with language to validate each other’s needs and views as legiti-

mate, even if they do not agree; makes constructive use of silence and pacing)

• If a party seems surprised about information provided by another party, explores

how this new information changes the first party’s understanding of past events 2. Helps parties develop agenda:

• Identifies, clarifies, and summarizes interests of each party, including

relationship issues

• Identifies areas of agreement and mutual interest (reinforces ability to agree)

• Develops a list of concerns that is balanced, exhaustive, and clear

• Conducts own analysis of underlying concerns

• obtains consensus about how to proceed (priorities of parties; order of issues

to be addressed— e.g., by most important, least important, most urgent, easiest,

or most difficult first) 3. Continues to build trust with parties:

• Responds appropriately to different conflict styles

• Validates identity and role of each party

• Avoids taking sides (e.g., uses neutral statements to demonstrate active listening)

• Invites each party to check assumptions

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and needs, not to do any problem solving or to bring the parties to agreement. The person playing Penelope should use the inventory in Box III.5 to prepare for this role- play. Focus on practicing just three or four skills at a time.

Debriefing : What challenges did the mediator face in this role- play? Which skills did the mediator use to deal with these? What were the parties’ original positions, and what underlying interests and needs did the mediator help the parties identify?

BOX III.5 INVENTORY OF SKILLS AND ACTIVITIES FOR

THE EXPLORING INTERESTS AND NEEDS PHASE

1. Helps parties develop insight about their feelings and interests: • Asks parties to identify feelings around their own issues

• Achieves understanding or closure on relevant feelings

• Asks parties to identify their perceptions of the other’s feelings around the

issues in conflict (facilitates recognition)

• helps parties explore underlying interests and needs

• helps parties explore their self- images and how these contribute to the conflict

and its possible resolution

• uses metaphoric storytelling to produce insights into the conflict (see Appendix 3) 2. Fosters open communication:

• Asks clear, open- ended, and relevant questions

• Reflects feelings (validates emotions)

• encourages parties to share relevant information

• provides opportunities for parties to check the accuracy and reliability of shared

information

• Maintains safe environment for clients

• Maintains appropriate level of control over emotional climate (e.g., exhibiting

relaxation through body language, calling for a breather, exploring immediacy,

using humor) 3. Helps parties maintain focus:

• partializes issues

• Keeps parties focused on one issue at a time

• Maintaining problem- solving focus

• Maintains control over disruptive behavior

• establishes priorities with parties 4. Balances power (if needed):

• ensures that parties have access to significant information

• facilitates access to needed support (e.g., legal advice, moral support, technical

advice)

• establishes and enforces guidelines to ensure that both parties have equal say

and participation

• uses caucusing to help parties negotiate more effectively

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ROLE- PL AY MIII.5: “SEQUEL S”— NEGO TIATION AND PROBLEM SOLVING

For this role- play, use the fact situation from one of the previous three role- plays. The media- tor should conduct a brief introduction and allow the parties to tell their stories. The parties should be cooperative up to this phase, so this role- play can focus on negotiation and problem solving. Box III.6 provides an inventory of facilitative and interest- based strategies that you can use to assist with this problem- solving stage. Box III.7 provides a list of settlement- focused and evaluative strategies. As you work on developing your skills, focus on three or four skills from either inventory. Many mediators use a blend of facilitative and settlement focused skills. Some mediators strive to use facilitative skills to empower the parties as much as possible; they want to avoid having the parties feel that they are being pressured into agreement.

BOX III.6 INVENTORY OF FACILITATIVE AND INTEREST- BASED

SKILLS AND ACTIVITIES FOR THE NEGOTIATION AND PROBLEM- SOLVING PHASE

1. Structures mediation process to facilitate problem solving: • Clarifies the goal or purpose of coming to an agreement (including how this

empowers clients to take control over their own decisions and lives)

• provides structure for problem solving

• Moves from broad principles (where parties can more easily agree) to more spe-

cific topics

• facilitates brainstorming (generation of options) for each issue

• helps parties weigh pros and cons of options in relation to their underlying interests

• helps parties develop objective criteria for deciding between options 2. Encourages constructive problem- solving behaviors:

• educates the parties about constructive negotiation skills and interest- based

negotiation strategies

• focuses the parties on the future, rather than the past

• focuses on one issue at a time (or a manageable number of related issues)

• promotes cooperation (e.g., praises constructive negotiation behavior) 3. Pre- empts or corrects counterproductive negotiation behavior:

• helps parties reframe statements that are negative, self- centered, past focused,

judgmental, or positional into perspectives that are more positive, mutually accept-

able, future focused, nonjudgmental, and interest- based (offering alternative ways

of looking at issues rather than trying to impose perspectives on the parties)

• helps parties see the negative impact of using disrespectful language or hid-

ing information, and the positive impact of demonstrating respect and sharing

relevant information

• If parties express judgmental statements, helps them see one another in a more

positive frame of reference

• Identifies the function or effect of parties’ behaviors or attitudes on negotiation

• helps parties separate personality issues from the substance of the negotiations

• explores cultural differences and misunderstandings

• Adapts language and behaviors to fit with culture(s) of parties

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• explores power dynamics and concerns for fairness

• explores how relationship issues may be having an impact on joint problem solving 4. Paces problem- solving process appropriately:

• Avoids imposing mediator solutions

• Avoids moving to solutions prematurely

• Maintains appropriate control over process— allows greater control to the par-

ties as they begin to work more collaboratively

• Allows all interests of the parties to be discussed

• Remains calm, optimistic, and persistent 5. Stimulates creative problem solving:

• uses decision trees, charts, notes, or other visual aids

• encourages parties to use lateral thinking (viewing problems from different

angles to try to come up with innovative solutions)

• links the parties with outside experts or resources to help enlarge their per-

ceived option set

• focuses parties on overarching principles, visions, or values before considering

specific solutions 6. Facilitates access to information:

• helps parties identify information that needs to be produced

• supplies and filters missing information, or seeks agreement on how parties

will obtain it for themselves

• If parties have forgotten issues raised earlier, gives parties an opportunity to

put them back on the table

• suggests homework tasks for parties to perform between sessions 7. Helps parties consider different perspectives:

• Recognizes or legitimizes the rights of others to be involved in the process,

where appropriate

• helps one party package a proposal in terms that the other is more likely to accept

• Brings others into the mediation process to contribute to agreement

• Asks parties to consider possible changes in future circumstances

• Invites parties to consider the interests of parties affected who may not be at

the mediation table 8. Helps parties resolve impasse by:

• Caucusing (meeting individually with both parties to explore possible blockages

to moving forward and ways to resolve them, to allow ventilation of feelings, to

encourage candor, to correct unproductive behaviors, to reality test, or to deal

with power imbalances without losing parties’ faith in mediator’s neutrality)

• encouraging parties to remain at the table

• helping parties refine a promising option to make it more acceptable to both parties

• helping parties save face (preserve honor) or undo a commitment

• listening carefully to what is happening in the moment and improvising in

a manner that motivates the parties to move forward, or even laterally (e.g.,

saying something for shock value, surfacing unspoken feelings, reaching into

a negative and extracting a positive, or reversing ground rules such as “one per-

son speaks at a time” or “everyone speaks respectfully”)

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BOX III.7 INVENTORY OF SETTLEMENT- FOCUSED

AND EVALUATIVE SKILLS AND ACTIVITIES FOR THE NEGOTIATION AND PROBLEM- SOLVING PHASE

1. Focuses negotiations on the bargaining range determined by the initial offers:

• elicits offers and counteroffers

• helps parties evaluate the pros and cons of offers made

• Narrows issues in dispute 2. Encourages or proposes possible concessions

• points out positives of particular option or concession

• Rewards party concessions

• takes responsibility for concessions (helping parties save face)

• Notes lack of progress and expresses concern

• offers substantive suggestions and proposals (without losing neutrality) 3. Helps parties re- evaluate expectations, reduce unrealistic aspirations, and

focus on a reasonable settlement: • Asks reality testing questions (raises doubts; facilitates insights about what is

realistic)

• evaluates pros and cons of each parties’ last offer

• evaluates and candidly presents how a court or other objective third party

would decide the issues

• uses gentle persuasion

• presents laws or other objective information

• engages parties in role reversals (“If you were the other party, what might be

your bottom line?”)

• helps parties consider hypothetical situations (“If you make a concession, how

do you think the other party will respond?”)

• uses constructive confrontation (e.g., helps a party to identify incongruencies

between two pieces of information the party has given, or between a statement

and the party’s behavior)

• helps parties do a cost- benefit analysis of nonagreement to persuade par-

ties to try to settle case in mediation (e.g., “What is the best alternative to

a mediated agreement [BAtMA], and what can you expect in terms of costs

in time, money, and aggravation, to yourselves and others affected by this

conflict?” “What are the risks and benefits of terminating mediation without

agreement?”)

• Increases costs of nonagreement through sanctions (e.g., issues warning that

lack of cooperation will result in a negative report to court or public27)

27 This example could be used in nonconfidential mediation.

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To compare and contrast SFM and IBM, you could assign different approaches to dif- ferent people who will play mediator in each successive role- play.

In addition to the skills that can be used to advance the mediation process, mediators should also consider what types of behaviors to avoid. Dysfunctional mediator behaviors are mediator responses that impede effective mediation. Many of these are the inverse or opposite of the positive skills and activities described in Boxes III.6 and III.7. For example, if “allowing all parties to discuss their interests” contributes to the process, then “failing to provide all parties with an opportunity to discuss their interests” impedes the process. The list in Box III.8 identifies dysfunctional behaviors to avoid. During the role- plays, observers should watch for the use of any of these dysfunctional skills. When debriefing, remember to provide constructive feedback in a respectful, behavior- based manner.

BOX III.8 DYSFUNCTIONAL MEDIATION SKILLS

1. Demonstrates bias to one party

2. focuses on own interests, values, or feelings, rather than the parties’

3. follows agenda too rigidly, ignoring what is going on for the parties

4. lacks structure, direction, or strategies to move parties toward shared understand-

ings or agreements (e.g., does little but carry messages between parties)

5. Allows assumptions and misunderstandings to go unchecked

6. Allows threats or blaming

7. uses inflammatory or disrespectful language

8. shares confidential information without permission

9. lacks genuineness (sounds artificial or disinterested)

10. exhibits lack of confidence (in self as mediator or in mediation process)

11. Is unprepared (does not know relevant laws, background information, or process issues)

12. Judges or blames parties for their role in the conflict

13. glosses over serious problems to try to reach settlement

14. Denies opportunity for parties to discuss feelings

15. Mismanages information provided by the parties

16. leads parties into a settlement that pleases the mediator

17. pressures parties into agreement

18. tries to solve problems for the clients

19. Ignores cultural and other diversity factors that may affect client interactions

20. Moves parties through phases too quickly

21. Allows one party to take control of the process

22. Becomes defensive when challenged by a client

23. Assumes a nonmediator role (e.g., crosses boundary into therapy, law, advocacy, etc.)

24. Asserts own reality rather than allowing parties to express their own realities

25. Misjudges parties’ true concerns or nature of conflict28

28 See S. Goldberg and Shaw (2007) for examples of dysfunctional behaviors reported by advocates involved in actual mediations.

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29 See http:// www.americanbar.org/ content/ dam/ aba/ migrated/ 2011_ build/ dispute_ resolution/ resolu- tion2002.authcheckdam.pdf for the American Bar Association’s policy on whether drafting an agreement constitutes “unauthorized practice of law.”

BOX III.9 INVENTORY OF SKILLS AND ACTIVITIES FOR

THE “FINALIZING AN AGREEMENT” PHASE

1. Uses appropriate language in the agreement or memorandum of understanding: • oral or written (as appropriate for the case)

• plain language (rather than legalese or professional jargon)

• Impartial, balanced, and mutual

• Comprehensive, clear, and concise

• future focused (rather than reviewing past or assigning blame) 2. Tests agreement to ensure that it is realistic and both parties can follow

through: • explores whether the parties view the agreement as practical, fair, enforceable,

and something they can live with over the long term?

• explores how the parties will manage contingencies (including possibility of

future disagreements)

• Clarifies the roles and obligations of each party (the agreement explains who is

responsible for doing what, when, and how, and what happens if one or both

do not fulfill their obligations under the agreement)

• ensures commitment (e.g., do they fully understand the agreement and its

implications, do they accept responsibility for making the agreement work?)

• explores doubts expressed by either party 3. Deals with how the tentative agreement will be finalized:

• helps parties determine whether to pursue a legally binding agreement drafted

by lawyers and signed by parties,29 court order on consent of parties, informal

letter (memorandum of understanding) rather than legally binding agreement,

or confirmed as an oral agreement based on the parties’ good faith

• ensures access to independent legal advice

Debriefing : Which skills and strategies did the mediator use effectively? What were the key differences in the process when different people used different approaches to mediation? Which approach seems most appropriate for this situation, and why? Which dysfunctional behaviors, if any, did the mediator demonstrate?

ROLE- PL AY MIII.6: FINALIZING AN AGREEMENT

Building on the scenario that you used in Role- Play MIII.5, use this role- play to practice finalizing an agreement. The mediator should prepare by identifying three or four skills to focus on from Box III.9. If the parties did not reach agreement in your prior role- play, you could focus on the skills in Point 6 for how to end mediation when the parties do not reach agreement. Alternatively, you could work out a tentative agreement before you begin this role- play, so you can focus this exercise on finalizing the agreement.

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Debriefing : What decisions did the parties make relating to whether the agreement was oral or written, and submitted to court, lawyers, or neither? What are the pros and cons of how they final- ized the agreement? Which skills did the mediator use most effectively for this phase?

ROLE- PL AY MIII.7: FOLL OW- UP

Using the scenario that you used in Role- Play MIII.6, prepare for a follow- up con- tact, as per the skills and activities in Box III.10. Select a method for soliciting feedback

4. Helps parties plan for implementation and follow- up: • summarizes the mediation process and reviews the agreement

• helps parties identify who is responsible for doing what, when, where, and how

• helps parties devise ways to monitor performance and enforce the agreements

(defining terms of implementation, evaluation, follow- up, and review, includ-

ing sanctions or other provisions that take effect if certain terms are broken) 5. Reinforces the parties’ efforts and decisions:

• ends on a positive note, encourages parties to shake hands, facilitates having a

meal or drink together, or engages the clients in some other some other closing

ritual (e.g., exchange of gifts or another symbolic gesture of camaraderie) 6. If full agreement is not reached, prepares parties for next steps:

• summarizes areas of agreement and disagreement

• explores possible alternatives for resolution of outstanding issues

• explores parties’ feelings and frustrations

• links parties to desired resources

• Reinforces parties’ efforts and successes (e.g., improvements in communica-

tion, understandings, relationships, and narrowing differences)

• offers opportunity to return to mediation at future date

BOX III.10 INVENTORY OF SKILLS AND ACTIVITIES FOR

THE FOLLOW- UP PHASE

1. Contacts the parties (by mediator or other person; sets up face- to- face meeting,

conducts the interview by telephone, or asks for feedback via mail, website, or other

online communication)

2. solicits feedback (structured interview for quantitative or qualitative research, eval-

uation form, survey, or open- ended dialogue)

3. provides mediation reviews at specific time intervals (e.g., to look at short- term or

trial agreements, to consider longer- term arrangements, to consider progress and

problems since finalizing the agreement, to assist parties with ongoing implemen-

tation of the agreement)

4. Reinforces positive performance and outcomes

5. offers additional services

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(e.g., a structured telephone interview with one party or an open- ended, face- to- face meet- ing with both parties together). Make sure your methods of soliciting feedback and your use of skills fit with the approach to mediation that you used in the prior role- plays (e.g., an interest- based mediator would ask for feedback on how well their underlying interests were satisfied, rather than simply whether their agreement was implemented or whether they avoided court).

Debriefing : What were the main issues that arose during follow- up? Which skills did the mediator use to handle these? Critique the overall effectiveness of this role- play, focusing on the mediator’s strengths and the degree to which the parties achieved the primary goals of the particu- lar approach to mediation. Give specific examples.

ROLE- PL AY MIII.8: FOUR CASES OF EMERGENT MEDIATION

The following cases involve emergent mediation. For each case, identify the issues in dis- pute and the nature of the conflict. What challenges do they pose for the third party? What strategies would you use to deal with them? Would it be appropriate for you to act as an emergent mediator? If so, what would you need to do to improve the chances that the parties accept you as a mediator? Try role- playing these situations from beginning to end (about 3 to 6 minutes per role- play, plus preparation and debriefing).

a. Family Feud

Richard and Jane are adult siblings who come from a family that deals with conflict by slam- ming doors, screaming, or throwing things. Frances is their longtime friend. During din- ner at a restaurant, Richard and Jane start to argue about who is going to pick up the tab. Frances feels caught in the middle. She feels embarrassed about making a scene and offers to pay the bill. Jane says, “No way! It’s Richard’s turn. Don’t let him walk all over you.” Richard replies to Jane, “You’re full of it! You’re the one who’s always bragging about how much money you make!” As a friend, what strategies should Frances use to help mediate the dispute? Try role- playing this situation.

Debriefing : Which strategies did Frances use? How effective were each of these? Were the parties ready for Frances’s help? How could Frances assess whether she should intervene? If Frances were Jane and Richard’s counselor rather than their friend, how would she help them with this conflict? How would a counseling role be similar to that of the friend? How would it be different?

b. Crabby Coworkers

Bea and Jay work as receptionists in Diversity Plus. Jay always complains that Bea is late, takes long lunches, and leaves early. Jay thinks Bea is lazy and is taking advantage of Jay’s good nature. Bea has a number of excuses— having to drop off and pick up the kids at day- care, needing time to do the shopping, and being tired from working too hard. In addition, Bea says that she’s more efficient than Jay and makes up for the time off. Jay finally can’t put up with Bea and goes to Orville (the office manager) to “fire Bea and get someone com- petent.” Because of Bea’s seniority and position, Orville is reluctant to fire Bea and would prefer to work it out amicably. Also, Jay is not responsible for deciding who to hire or who to fire. Orville has arranged for a meeting with both of them.

Debriefing : What challenges did Orville face in this situation? How did he handle them? What issues can Orville be neutral about and what are the limits of his ability to be neutral? Is emergent mediation an appropriate role for Orville? Why or why not?

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c. Gossipy Group

Ashley and Gerry are members of a recreational softball team. Cayla is team captain. In recent weeks, Ashley has been saying that Gerry is having an affair with “an old cougar named Millicent.” The team is on the playing field. Gerry has just caught wind of this story from the shortstop. He decides to throw the next ball that comes his way at Ashley’s head. Gerry has a bad arm, so the ball misses Ashley. The two start cursing and threatening each other. As captain, Cayla intervenes and leads them into the locker room to “talk it out.”

Debriefing : Which mediation strategies did Cayla use, and how did the parties respond to these? What are the advantages or disadvantages of Cayla using a combination of authority and mediation in helping Gerry and Ashley? Contrast this softball team scenario with a group of social workers, nurses, psychologists, and doctors who worked together in a hospital. How are the roles of baseball team captain and interdisciplinary team leader similar regarding conflict man- agement roles? How are they different?

d. Catch- 22 Couple

Fanya is a family therapist who has been seeing Andy and Michelle over the past 3 months for couples counseling. Andy and Michelle are trying to decide what to do for their fifth anniversary. Andy wants them to go on a nostalgic trip back to their birthplace, Bohemia, where they also met and married. Michelle wants to throw a big party here in Conflictia. They do not have the time or money to do both. They come to Fanya, their trusted therapist and friend, to tell them what to do or where to go. If Fanya sides with one, she will offend the other. If Fanya gives them a third option, they will both get angry with her. If Fanya refuses to help, then they’ll think Fanya is “a wuss.”30 Role- play this with Fanya choosing to help as an emergent mediator.

Debriefing : How did Fanya handle Andy and Michelle’s request to tell them where to go? What were the risks for Fanya, as a therapist, in using a mediation approach with this couple? How would her use of skills differ depending on whether she used an emergent mediation approach or a traditional therapist approach?

MAJOR ASSIGNMENTS

The following role- plays can be used for major assignments. See the section on Major Assignments in Chapter 6 for instructions on how to prepare a written analysis. These role- plays give you broad latitude about how to prepare and how to intervene. You can use theory from this chapter or from other mediation books and articles.

Assignment III- A: Gun Prohibition Case

The three roles to choose from in this case are Adelle (who will take on a mediator role), Faith, and Connie. If any of the role- players are male, they could be Arnie, Foster, or Constantine.

Adelle is the administrator for Conflictia’s Seniors’ Center (CSC). At CSC’s last annual meeting, many members said they were concerned about their safety on the streets of Conflictia. They believed that the elderly are especially vulnerable to violent crime because of concerns such as physical frailties, dementia, and lack of awareness about potentially

30 A derogatory term, suggesting the person is a coward.

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dangerous situations. A motion was passed at the meeting that the Center should send a position paper to each of the three major political parties in Conflictia: ROC, LOC, and SIM.31 The LOC Party has recently proposed that Conflictia pass a constitutional amend- ment to ban possession and sale of all guns and rifles.

Among members of CSC, there is rift between (1) those who believe prohibiting guns would go a long way to promoting safety and (2) those who believe that prohibiting guns not only would be ineffective but also would impose a gross infringement on the rights and freedoms of law- abiding citizens. To resolve their differences, Adelle suggested that they try a two- party mediation process, in which she would act as mediator.

Each side of the debate has met as a group and appointed a leader to represent its view- point. Faith will represent those who favor the proposed constitutional amendment to ban guns. Connie will represent those that oppose the proposed gun prohibition. They will meet with Adelle to try to work out a joint position paper that they will present to the three political parties. They believe CSC will have a stronger voice if it submits a single, con- sensus report, rather than have members with different viewpoints submitting their own suggestions. They also believe this process can bring members of the community closer together if the process is successful; conversely, an unsuccessful process could be alienating and divisive.

Connie’s Confidential Facts Connie is a member of the Conflictia Gun- Toting Association and has a collection of rifles, some of them antiques. She doesn’t hunt, and they stay in a special locked case. If the gun prohibition laws are passed, Connie would not turn in her guns as a matter of principle. Prohibition is just another attempt by government bureaucrats to enter the bedrooms and basements of law- abiding citizens. Money could be better spent on food for the hungry or housing for the homeless. Although Connie does not agree, most peo- ple at CSC who oppose gun prohibition believe that the government should be spending more money on law enforcement and prisons in order to make the streets safe for all citizens.

Connie does not like conflict— particularly conflict involving arguments and raised voices. She is concerned that Faith might get carried away and start yelling. If this happens, Connie will withdraw into silence. Better to avoid this type of trouble. In addition, Connie isn’t sure the mediator (Adelle) can handle Faith.

Faith’s Confidential Facts Faith tends to express feelings openly, verbally, and with broad hand gestures— perhaps it is a cultural thing. The issue of gun control is an emotional issue for Faith, having been mugged at gunpoint only 18 months ago. Faith realizes that she represents a group from her agency, and will try to keep her personal experiences in check— most of the time. She also wants to ensure that their position paper will significantly affect the political debate. There is no use in offering suggestions that government will just ignore. The LOC Party already favors the constitutional amendment, but it needs to convince members of the SIM Party, and even a few of the softer heads of the ROC Party, for the amendment to have any chance of passing.

Faith and her constituency believe that the purpose of government is to keep peace and order. They see gun prohibition as a legitimate way to reduce the incidence of violent crime

31 These acronyms stand for Right of Center, Left of Center, and Somewhere in the Middle.

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and injury. Faith is also aware of suicide statistics showing that the availability of guns is associated with a higher incidence of completed suicides. If people having suicidal thoughts have direct access to an effective means of killing themselves, then they are more likely to kill themselves. Also, unplanned murders (committed in the heat of passion) are more likely when guns are accessible. Spousal violence, in particular, can result in death rather than lesser injury when guns are readily available.

Faith is subject to occasional, short- term memory lapses. At one point in the meeting, Faith might lose her train of thought and start asking about why the food in the CSC is so bad. She is embarrassed about her memory lapses and will try to cover them up— perhaps pretending she has a hearing problem. Consensus is very important to Faith. She likes to get along with everyone and doesn’t want this debate to leave any scars on CSC. However, Faith is a tough bargainer, particularly when the stakes are so high.

Adelle’s Confidential Facts (Mediator) Although Adelle has a degree in public administration, she is also a former Navy admiral. In the military, she learned to deal with people straight on— no nonsense. Adelle person- ally favors gun prohibition, not just for the public but also for the police. Only the national armed forces should have access to guns. Adelle has seen the damage people can do when they do not know how to use a gun properly. Adelle is also a registered member of the LOC Party, which favors gun control.

To prepare for this meeting and plan a process, you may want to meet with another person from your class who is also playing the mediator. Brainstorm issues that you might expect and identify strategies to help you deal with them. For instance, is the main issue whether to pass a constitutional amendment to prohibit guns? How can Adelle help to heal the divisiveness within the CSC and encourage both sides to work together? Consider bringing snacks or drinks to the meeting to make the meeting feel more relaxed and friendly. Consider whether there are any special considerations as to how you conduct the meeting, given that the participants are seniors. Also, take care to avoid making ageist stereotypes.

Assignment III- B: Stalking Situation

The Community Mediation Center has recently received a referral from local police involving a situation of alleged stalking. The complainant is Camela, a 27- year- old woman who lives in the Riverview District of Conflictia. She filed a complaint against Steadman, a 34- year- old man who she believes has been stalking him. She says he fol- lows her along the river where she jogs each morning. He also hangs around her apart- ment building, apparently trying to peer into her bedroom window. W hen police investigate the situation, they find insufficient evidence to pursue the case in criminal court. Steadman has no prior criminal record, although he has been seeing a psychia- trist. Steadman was born in Jamaica, but came to Conflictia with his parents, Ike and Mavis Powell, when he was 5 years old. He lives with them in a home about three blocks from Camela’s apartment. Mavis is a mayor, planning to run for re- election in the next few months.

When Steadman receives his invitation to participate in mediation, he is very confused about what mediation is or why he is being summoned to attend. He knows Camela, but was not aware that she had any concerns about him. Camela is reluctant to meet Steadman in mediation as she finds him “very creepy.” Mavis agrees to attend mediation on behalf of Steadman. Camela is willing consider mediation because the police have told her there is

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nothing else she can do. The mediator assigned to this case is Margaret. Coincidentally, she was also born in Jamaica.

Camela’s Confidential Facts Camela is very concerned about her safety, having heard about a number of rapes in her neighborhood in the last 2 years. She enjoys jogging and does not want to forfeit this exercise. She is not sure exactly what is wrong with Steadman but she thinks he may have schizophrenia or some other mental illness. She is worried that he may be hearing voices that tell him to do strange things, perhaps even rape or murder. Steadman often smiles and waves at Camela, but he has never touched her or had a conversation with her. Camela prefers to meet with one of Steadman’s parents so she does not have to meet face- to- face with Steadman. Further, she does not want to be outnumbered dur- ing mediation, so she does not want both parents to attend. Camela would like to bring an attorney, but she cannot afford one on her salary as a personal trainer. She does not see herself as racist, but she is aware that many people convicted of rape are African American. Also, she is concerned that the mediator is from the same background as Steadman’s family.

To prepare for this role- play, consider your opening positions, your underlying inter- ests, and your alternatives if this mediation is not successful. Further, consider your feel- ings and how you might respond during mediation given your sense of fear. Be open to thinking about creative options for solution. Do not compromise on your concerns about safety.

Mayor Powell’s Confidential Facts For this role- play, Mayor Powell will be participating in mediation on Steadman’s behalf. Camela believes that Mayor Powell is acting on Steadman’s behalf so that she does not have to be in a room with Steadman. Mayor Powell did not want Steadman to participate in medi- ation because he lacks mental capacity and needs a parent to represent him. Steadman has a moderate developmental disorder with cognitive challenges. He may also have an autism spectrum disorder, but this has never been diagnosed. Mayor Powell knows Steadman is socially awkward. She also knows he is not violent or dangerous. Mayor Powell particularly concerned about keeping the alleged stalking out of the public eye. She is concerned how a negative story about Steadman could damage her reputation and ability to win re- election. Mr. Powell is also very protective of Steadman and wants to ensure that he is protected— legally, emotionally, and socially. He believes that Steadman has done nothing wrong, so he is innocent unless proven guilty of something. Steadman deserves freedom, respect, and acceptance. The family is concerned that Camela’s concerns are based on racist stereotypes about young Black men (e.g., violent, predatory). They also do not like when she calls them African Americans, as they come from Jamaica and identify as Jamaican. The Powells think that Camela wants Steadman locked up and completely out of the neighborhood. They believe that Steadman has the right to be free and to go wherever he wants. Still, they do not want trouble with Camela, the police, or the media. They like Margaret, the mediator. They view mediation as a type of court. They may try to ally with her and get Margaret to rule in their favor. Steadman has a psychiatrist who provides psychotherapy. Steadman has no friends. He likes gardening, hiking, and walking his dog. Steadman is enamored with Camela and means her no harm.

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Margaret’s Confidential Facts Margaret is an experienced mediator with a mental health background. She is not familiar with the laws regarding stalking and what would be required to obtain a court order for protection. Margaret knows she is supposed to remain neutral, though her agency policies also state that she is responsible for ensuring a safe and fair mediation process.

To prepare for this meeting, you will need to determine how to begin the process. For instance, do you want to call or meet with each party separately? How will you deal with the fact that Steadman will not be attending mediation on his own behalf ? How will you assess for safety and power issues? Determine whether you want to use an interest- based or task- oriented approach for this mediation. Also, you may want to have more than one session so you can focus on the early phases of mediation during the first session and the latter stages in the second session.

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C h a p t e r s e v e n

transformative Mediation

The introduction to Module III focused on t wo models of mediation, settlement- focused and interest- based. You may be wondering why transformative mediation merits a separate chapter. Some mediators view the skills and strategies used in transformative mediation as complimentary to those in interest- based mediation. According to this view, transformative mediation (Tf M) is a style or constellation of skills that can be sprinkled into one’s mediation practice along with other approaches. Many of its stron- gest proponents, however, view Tf M as a distinct process that should not be melded with other models of mediation; to mix methods causes confusion and the entire process loses coherence (Bush & Folger, 2005). Whereas the fundamental goal of interest- based media- tion (IBM) is to help parties achieve a mutually satisfactory agreement, Tf M is designed to transform the manner in which parties deal with conflict. Although Tf M may help parties reach a mutually satisfactory agreement, this is not a primary goal. As you work through this chapter, please note how IBM and Tf M share some of the same skills; however, these skills are often used for different purposes within each model. For instance, an interest- based mediator may use active listening to help parties calm down and engage in rational problem solving. Although a transformative mediator may also use active listening skills, the purpose may be to facilitate emotional engagement, rather than to calm the parties.

LEARNING OBJECTIVES

Upon successful completion of this chapter, you will be able to:

• Critically analyze the strengths and limitations of a transformative approach to mediation.

• Empower mediation participants through strategies such as sharing control over the process, caucusing, facilitating insight, and creating conditions that foster creativity.

• Provide opportunities for mediation participants to listen to, acknowledge, and validate one another’s perspectives.

• Help mediation participants decide whether and how to offer apologies and forgiveness.

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This chapter begins with a definition of Tf M, including its vision, objectives, and core strategies. The next sec- tion explores the rationale for Tf M. The middle sections of this chapter use a case study to demonstrate how trans- formative mediators can facilitate empowerment and rec- ognition through a range of strategies and skills. The final section of this chapter analyzes the potential limitations of Tf M. As you work through this chapter, consider spe- cific conflicts that you have experienced and observed. Reflect on how Tf M could be helpful in those contexts.

TRANSFORMATIVE MEDIATION DEFINED

To understand Tf M, it is helpful to appreciate the meaning of the more general term, con- flict transformation. Conflict transformation refers to a process that seeks to alter the way that people deal with conflict, for instance, shifting them from violence to peace, from avoidance to engagement, from contempt to respect, and from competition to collabora- tion (Berghof Foundation, 2011). Although conflict may lead to destructive patterns of interaction, a transformative approach highlights the potential of conflict to energize people toward positive change (Lederach, 2006). Whereas interest- based and settlement- oriented approaches are designed to help people solve particular problems, transformation focuses on the processes of conflict interaction rather than the solutions or particular outcomes. Transformative conflict resolution (CR) suggests helping professionals can do meaningful work without making resolution the primary or only goal. For instance, we can help people come to terms with conflict, accept its existence, cope with it more effectively, and grow with or despite the conflict (Mayer, 2009). A transformative approach does not view con- flict as an isolated event to be resolved, but rather as an integral component of society and human interaction (Berghof Foundation, 2011).

In some instances, transformation requires addressing the root causes of conflict, for instance, denial of basic rights, needs, or respect for the dignity and worth of particular groups or individuals. Consider a youth who responds to racial insults from a teacher by striking that teacher. Merely bringing the youth and teacher together to deal with the spe- cific incident may do little to transform the context in which the incident took place (e.g., the school or community where racism is prevalent). Effecting change at a broader con- textual level may require prolonged engagement and effort, assessing and addressing the underlying origins of the conflict (Berghof Foundation, 2011).

In other instances, transformation is not based on addressing underlying causes of conflict, but rather providing people with the time, space, and skills to manage conflict more effectively. Thus, helping professionals can facilitate transformation by providing a safe environment to engage in conflict, opening communication, sharing stories and feel- ings, building trust, practicing CR skills, and exploring creative ways of managing conflict (T. Lewis & Umbreit, 2015; Mayer, 2009). Transformative approaches may be particularly important for intractable conflicts, conflicts that have endured for a long time and with no easy solutions in sight. Thus, establishing ground rules in a transformative model is not limited to how the parties interact during formal CR meetings; ground rules may provide guidelines for how to interact in the community and in particular social contexts. In situ- ations where it may not be realistic to extinguish all forms of fighting, the parties might negotiate rules for “fair fighting.” An interprofessional medical team with high levels of con- flict, for instance, might agree that team members may express their concerns strongly, pas- sionately, and even defiantly— to each other. They may also agree to speak respectfully with

When we quit thinking primarily

about ourselves and our own

self- preservation, we undergo a

truly heroic transformation of

consciousness.

—Joseph Campbell

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patients, families, and members of the public, keeping the more heated debate within the confines of their team meetings.

W hile there are many possible approaches to conflict transformation,1 Bush and Folger (2005) developed a particular model of Tf M that has gained substantial popu- larity since the 1990s. They conceptualize Tf M as a voluntary and consensual process designed to enhance the quality of interaction between people as they discuss their conflicts, concerns, and possibilities for resolution (Folger et al., 2010). Transformative mediators provide clients with a time, space, structure, and opportunities to transform their conflict, including their ways of communicating, understanding, acknowledging, and problem solving. Bush and Folger (2005) define the true promise of mediation as its ability to facilitate empowerment and recognition. Empowerment refers to the capac- ity of mediation to promote each party’s sense of strength and ability to manage conflict and decisions that affect their lives. Under Tf M, mediators do not try to induce clients into agreement. Instead, they support each client’s deliberation and decision making at every point in the process, allowing them to agree or disagree with each other (Folger et al., 2010). Transformative mediators are fierce supporters of client self- determination, showing great faith in clients to make good decisions for themselves ( Jameson, 2010). Recognition arises when clients develop better understandings of each other’s thoughts, feelings, and perspectives, as well as when they acknowledge and show empathy for the other’s thoughts, feelings, and perspectives. By providing clients with a time and place to engage in constructive conversation, mediators allow parties to develop new insights about themselves, each other, and their conflict. As the parties demonstrate greater understanding toward each other, the quality of their relationship improves. Recognition and empowerment are interactive dynamics. As each party moves from feeling disem- powered to more empowered, they are better prepared to listen to each other and show understanding and compassion. As each party feels better understood and validated, they are better prepared to take control over their conflict and important decisions that need to be made (Bush & Folger, 2005).

Informing clients that mediation will facilitate empowerment and recognition may sound like professional jargon or empty platitudes. So, how would one explain Tf M to cli- ents in a meaningful way? The following paragraph demonstrates how you could explain Tf M in plain language.

Before we get started, perhaps we could discuss what each of you know about mediation and what type of mediation process you would like to have [pause for response and adjust answer accordingly]. As you may have heard from those who referred you to mediation, my role is not to judge who is right or who is wrong , or to make any decisions for you. My role is to provide you with a safe place and structure to talk about the conflict that brought you to mediation. I can support your discussion so you can speak freely and be heard by one another. If you have questions about how to communicate or negotiate more effectively, I can provide suggestions, but you will be the ones making all the decisions.

Although you may develop an agreement through the mediation process, reaching agree- ment is not the primary goal of mediation. Depending on your preferences, you may want to develop deeper insights, better relationships, or a greater sense of control over your situations. Each of you has your own view of what has happened in the past and what you would like to

1 E.g., T. Lewis and Umbreit (2015) refer to their transformative model as a humanistic approach to media- tion, focusing on dialogue rather than resolution, emphasizing the strengths of the parties, and utilizing the healing power of sharing stories and personal feelings.

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do in the future. You do not have to agree with each other about what has happened, but at least you can get a better idea of where the other person is coming from.

I trust you to make good decisions throughout this process. My role is one of support. I will listen carefully to both of you. I will help you decide what type of discussions will be most beneficial to you. When both of you agree about how to proceed, we can move ahead based on those agreements. When you disagree, we can talk about your concerns further. I can provide you with opportunities to share your concerns in a constructive manner. As you listen to each other, you may want to show that you understand the other person’s thoughts, feelings, and perspectives. I can help you demonstrate understanding , but I will never force you to say anything. You may also want to learn more about each other’s concerns, goals, options, and resources. To assist with your conversation, I may ask questions for clarification.

One of the primary benefits of mediation is that it provides you with an opportunity to take greater control over issues affecting both of you. I am not going to make decisions for you. You decide whether you want to mediate, what you want to mediate, and even how you want to mediate. During conflicts, people often feel a lack of control or power over the situation. I can help you gain a greater sense of control over the conflict and the decisions to be made. You may want additional information. I can help you decide how to gather and share that information. You may feel stuck with just one or two options. I can help you expand the choice set by using your creativity to full advantage. In order to decide what to do in the future, we can talk about various options. If both of you agree to some sort of solution, we can put that agreement into writing. If you do not reach agreement, then you may still leave mediation with a better understanding of each another’s positions and the options available to you.

I am open to hearing any questions that you have about mediation, including any clarifi- cations or concerns. This is your process. You may decide how we should begin.

This introduction could be broken down into smaller segments, providing clients with the opportunity to ask questions and make comments throughout. The introduction should really be a conversation, engaging the parties in a discussion, rather than an opening state- ment, simply presented to the clients (Bush & Folger, 2005). The mediator could also dis- cuss the voluntary and confidential nature of mediation, as discussed in the introduction to Module III. In addition, the mediator could describe mediator neutrality, meeting guide- lines, and other topics for the orientation stage of mediation.

This chapter emphasizes Bush and Folger’s model of transformation, including its focus on empowerment and recognition. Note that other transformative models focus on other aspects of transformation, such as facilitating storytelling (Winslade & Monk, 2008), insight (Picard & Melchin, 2007), moral growth, open dialogue, creativity, and imagination (Lederach, 2005; Woolford & Ratner, 2009). Rather than presenting competing models of Tf M, this chapter integrates these aspects of transformation into the discussion of empow- erment and recognition. For instance, facilitating storytelling and insight fits with recogni- tion. Facilitating creativity and imagination fits with empowerment. Remember that the overall goal of Tf M is to give clients the opportunity to enhance the way that they deal with conflict and with one another. There are many ways to empower them to achieve this goal.

RATIONALE FOR TRANSFORMATIVE MEDIATION

Tf M views conflict not as a problem to be solved, but rather as a crisis in human interaction (Institute for the Study of Conflict Transformation, n.d.). When people become embroiled in conflict, they tend to focus on themselves rather than the other person: “Why did this happen to me;” “What am I going to do about it;” and “Why wasn’t this other person more considerate of my well- being?” When this negative conflict spiral begins, people have

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greater difficulty thinking about the situation clearly and objectively. They may avoid com- munication, or hold anxiously to their solutions and perspectives ( Jameson, 2010). When one person responds defensively, the other person may react with greater fear, frustration, or anger. In turn, these feelings may lead each person to denigrate or demonize the other. As the conflict exacerbates, each person experiences a sense of weakness and incapacity: “No matter what I do, she’ll never change,” “I’ll just have to put up with this problem,” or “I’ll go to court and the judge will see things my way, I hope …” The primary rationale for Tf M is that it provides clients with an opportunity to reverse this negative conflict spiral. Tf M helps clients shift from feeling weak and disempowered to feeling strong and in control. Tf M provides clients with an opportunity be more responsive and constructive, human- izing relations and enhancing deliberations about how to manage the conflict. Tf M allows clients to hear one another, truly listening to and understanding each other’s perspectives (Bush & Folger, 2005).

Tf M builds on Carl Rogers’ (1957) client- centered approach, appreciating the value of listening and demonstrating deep trust in the capacity of people to make good decisions as experts in their own lives. Tf M holds an optimistic view of people’s inherent abilities, including their capacity to move beyond crisis and re- establish balance between themselves and others. Tf M adopts a relational view of people, focusing on their capacity to connect with each other while still retaining their sense of autonomy (Institute for the Study of Conflict Transformation, n.d.). In other words, Tf M fosters growth in the individual par- ties as well as in their relationships (L. Parkinson, 2011). As transformative mediators listen and demonstrate empathy with their clients, they model recognition and alternate ways of communicating. The mediator’s role is not to instruct clients, but rather to support their quest for clarity, insight, empathy, choice, decision making, connection, and acceptance of personal responsibility (Bush & Folger, 2005).

Although transformative mediators adopt a relatively nondirective approach, this does not mean that they do little. Transformative mediators attend intensely and continuously to each party, including their nonverbal and verbal behaviors and interactions. They stay mindful and focused, intentionally keeping out of the clients’ way and minimizing inter- ruptions. They need to be present to help clients focus on the here and now, including conflicts and dynamics transpiring in the room. Transformative mediators do not gloss over differences or encourage Band- Aid solutions. They may sharpen differences between people, helping parties acknowledge divisions and concerns (Folger et al., 2010). “Demi, I hear you saying that we need a stronger safety net to ensure that everyone’s basic needs are met. Ruby, you seem to be saying that expanding welfare would only encourage more people to be dependent on government handouts.” Although the mediator models respect- ful language, the mediator does not use positive reframes to highlight common ground or to bridge differences. He also avoids placing his own value judgments on the conflict or how it should be handled. The mediator trusts the parties to manage differences and reach their own conclusions. This allows clients to recognize, process, and accept challenging feelings such as anger, frustration, hostility, and anxiety.

Whereas a settlement- oriented mediator maintains relatively tight controls over the agenda (“Let’s talk about what you plan to do in the future”), transformative mediators are not afraid to allow clients to engage in discussions of volatile or dangerous issues (“It sounds like race is the unspoken elephant in the room. Is this issue too uncomfortable to discuss, or would you like an opportunity to talk about the role that race plays in the pres- ent conflict?”) (Cloke, 2001). Conflict transformation does not mean encouraging cli- ents to compromise or give in; at the same time, it does not mean escalating the conflict. Transformative mediators help clients dealing with uncertainty, confusion, turmoil, stress, and danger, enhancing their motivation and energy to stay with conflict. Tf M also allows

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parties to discuss and rehash the past, as reviewing the past can help them reassess the cur- rent situation and their plans for the future (L. Parkinson, 2011).

As noted earlier, Tf M’s primary goals are empowerment and recognition rather than settlement or resolution. Still research indicates that when parties achieve these goals, they are more likely to reach agreement (Donohue & Liang, 2011). In other words, when parties listen to each other, acknowledge their differences, and assume responsibility for how to proceed, they strengthen their capacity to resolve their differences in a collaborative man- ner. The parties may also be more likely to follow through on their agreement if they have taken ownership of the process and if they have learned how to manage ongoing concerns more effectively. The outcomes of Tf M also tend to be more sustainable as the parties have had an opportunity to fully explore and resolve issues, rather than racing toward agreement for the purposes of attaining an expeditious settlement. People do not want to be induced into agreement; rather they want to be heard, to have voice and choice, and to have control over the decision- making process. Tf M affords clients a structure for learning how to relate effectively with others, even in the midst of conflict- related emotions such as anger, hurt, grief, and frustration (Bush & Folger, 2005).

When dealing with enduring conflict situations, it may be unreasonable or counterpro- ductive to create expectations that conflict will be fully resolved within a short time frame (Mayer 2009). Tf M may be particularly useful for such conflicts because success may be gauged in relation to incremental progress:

• Have the clients come to terms with which issues are solvable and which issues may remain insolvable?

• Are the clients learning how to respond with civility, honesty, and reliability, whether or not the other person is behaving in a similar manner?

• Do they have a greater sense of the history of the conflict, its causes, and factors that maintain the conflict?

• Has their sense of hopelessness been replaced with a greater sense of optimism or empowerment? (Mayer, 2009)

Even small changes may be viewed as success. For high conflict situations, a relatively small improvement in the tone of language or the sense of hope by the parties can be momentous. Changes manifest through mediation may contribute to personal strength and understand- ing, with positive repercussions extending well beyond the end of the formal mediation process (L. Parkinson, 2011).

Tf M has been used in a broad range of contexts, including workplace disputes ( Jameson, 2010), community- based conflict, intergroup discord, divorce, family business conflicts, and diversion from criminal and civil courts (Bush & Folger, 2005). Tf M may be particularly useful in situations where the parties have ongoing connections as neigh- bors, family members, coworkers, or professional client relationships. Tf M not only helps parties resolve distinct issues; it helps them interact more constructively well beyond the mediation sessions. Tf M not only provides benefits for the immediate parties, but also for the communities, organizations, families, and other social systems in which they function. Ultimately, proponents of Tf M envision their process as having the potential to transform society as a whole (Bush & Folger, 2005).

EMPOWERMENT

Empowerment refers to any process in which individuals or groups gain greater con- trol over matters that affect them. At a psychological level, empowerment is marked by

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enhancement of one’s self- esteem, confidence, and sense of self- efficacy. Thus, empower- ment is experienced when a person moves from lack of ability and action to participate in bringing about resolution to a position of strength indicated by someone who man- ages conflict in a calm, centered, confident, decisive, and organized manner (Donohue & Liang, 2011). At a social level, empowerment involves gaining power through education, politicization, and collective action (Freire, 1994). Indicators of empowerment shifts include the following:

• Clients have a clearer understanding of their situation, including their goals, wants, inter- ests, and needs.

• Clients become more aware of the options available to them (what choices are available and that they have control over them).

• Clients improve their CR skills, including their ability to listen, express their concerns, identify wants and needs, organize and analyze issues, present arguments, brainstorm, and evaluate alternative solutions.

• Clients gain awareness of resources already in their possession or available to them to achieve their goals and objectives.

• Clients make decisions for themselves rather than relying on judges, experts, or others to make decisions for them.

• Clients reflect, deliberate, and make conscious decisions for themselves about what they want.

• Clients are able to analyze the strengths and weaknesses of various choices, enabling them to make well- informed decisions.

• Clients have a sense of calmness and hope about their conflict situation. • Clients feel strong and in control of the decisions affecting them (Bush & Folger, 2005).

Research suggests that people who are empowered are better able to describe conditions as they are and as they should or could be in the future; research also suggests that empower- ment is positively correlated with the ability to be communicatively open, decisive, and clear about one’s positions (Donohue & Liang, 2011). In contrast, people with lower levels of empowerment tend to have greater difficulty engaging in conflict in a constructive man- ner. They tend to raise highly charged issues. They may also have difficulty articulating their concerns with clarity and confidence (Donohue & Liang, 2011).

To demonstrate the process of empowerment, consider the following example of child protection mediation.

Madge is the 22- year- old mother of Caris, a 4- year- old who was removed from Madge’s home because of concerns about child sexual abuse. Paul, the child protection worker who conducted the assessment, believes that Madge’s boyfriend, Bryce, had been molesting Caris ever since he moved in with Madge, 4 months ago. Madge denies that Bryce would hurt Caris in any manner. Madge feels distraught and helpless. She hires an attorney to help her go to court for an order requiring protective services to return Caris to her. The administrative judge responsible for the case refers the parties to Travis, a transformative mediator who specializes in child protection cases.

If Travis viewed this situation from a problem- solving approach, he would see his role as helping Madge and Paul identify their concerns and underlying interests so he could help them develop a mutually agreeable solution. Instead, Travis strives to facilitate empower- ment and recognition. The following sections describe ways in which the mediator can support the empowerment of both parties. Note that the examples are not presented in a

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fixed order for the mediation process. In contrast to the structured nature of interest- based and settlement- oriented mediation, the phases of Tf M are much more fluid. Although the mediator may generally follow the phases of preparation, orientation, storytelling, and so on, transformative mediators take their lead from the clients and are not bound to follow the phases in a rigid manner. Further, the following examples are intended to illustrate how mediators might support empowerment shifts; these examples are not intended to provide an exhaustive list or indicate only the best ways to facilitate empowerment.

Control over Process

Interest- based mediators suggest that they maintain control over the process of mediation, while providing clients control over the decisions or outcomes. In contrast, transformative mediators provide clients control over both the process and the outcomes. Empowering clients starts from the outset of the process, with the mediator allowing the parties to deter- mine how the mediation will proceed, including the staging, timing, and sequencing of topics. Thus, when Travis initially contacts the parties, he might ask them where and when they would like to meet. Ordinarily, Travis prefers to mediate in his office, believing this to be a neutral, friendly place to meet. In this case, both parties suggest meeting at Paul’s office. Although Travis questions in his own mind whether this location gives Paul a tactical advantage, he does not impose his preferences. Rather, Travis inquires why they want to have the meeting at Paul’s office. Madge and Paul note that it is a more convenient location than his office. Travis shows faith in their ability to make good decisions, supporting their empowerment.

Supporting client control over the process continues at various points in mediation process. Rather than suggesting or imposing ground rules for the parties, Travis asks them, “What type of guidelines do you think might be helpful to ensure that our conversations are safe, meaningful, and productive?” Initially, Madge and Paul are unsure about what Travis means by guidelines. Travis mentions topics such as guidelines for showing respect, speak- ing, and confidentiality. Madge says that whatever is discussed in mediation should stay in mediation. Paul explains that he cannot promise absolute confidentiality because his man- date is to protect Caris from abuse or neglect. Madge retorts, “I thought mediation was supposed to be private, but now I’m hearing that whatever I say can be used against me.” Travis invites Paul to respond to Madge’s concern. Paul explains that he wants to resolve things in mediation and that he does not want to go to court. Still, he cannot promise that the case won’t end up in court. Travis explains that often the parties agree that they won’t call the mediator as a witness, so in that sense, the confidentiality of mediation is preserved. He says it is up to them to decide what information that they want to share, and under what circumstances. Madge notes that if Paul can share things from mediation then so can she. As they discuss this matter further, they both agree that they want to avoid court. They also agree that if the case does not go to court then the information shared in mediation will not need to be shared with anyone outside the mediation process. Madge says she might have to watch what she says in mediation so that she doesn’t get into further trouble. Personally, Travis would like to encourage Madge to trust the process and be as open as possible. As a transformative mediator, however, he validates her concerns. “I understand how you might feel guarded about what you say in mediation.” He also offers to check in with Madge and Paul as mediation progresses to see if they have any additional concerns or guidelines about confidentiality.

Madge asks what other types of guidelines are common in mediation. Travis says that some people agree to no interrupting one another; when one person starts to speak, the other will give time to finish what he she is saying. Paul and Madge say this rule is too

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restrictive. Instead, they agree to give each other equal opportunity to talk, but there may be occasions when one person can interrupt the other. This empowers the parties by giv- ing them greater say over the process. They also learn skills for dealing with conflict on their own. If their rule proves problematic, they can review it and negotiate a more effective one. They are not completely dependent on the mediator for guiding them through the process. Establishing ground rules about being polite and respectful can sometimes shut down conflict and communication. Transformative mediators support the open sharing of information, even passion, anger, and other strong emotions. Travis is not afraid that Paul and Madge will say what they need to say, and in the manner that they need to say it (Cloke, 2001).

Paul asks whether attorneys should be present during mediation. Travis supports Madge and Paul in making this decision. They discuss the advantages of having attorneys present: having legal advice readily available, making sure they stay on task, and ensuring their rights are respected. They also discuss disadvantages. Madge is concerned about keep- ing legal fees down. Paul says that the main issues are not really legal issues, but rather how Madge and Paul can make arrangements to ensure that Caris is safe. Eventually, they agree not to have attorneys present during mediation, but available via telephone should they need legal consultation. Travis thinks that Madge might want to have her legal advisor pres- ent because she is less knowledgeable about the law than Paul. Although Travis is aware of potential power imbalances, he reminds himself to trust Madge to make good decisions for herself. He notes that his role is not to rebalance power between the parties.

Although the parties have not discussed or finalized all the process issues, Paul starts to delve into the issues that gave rise to the current conflict. “My biggest concern in this case is Madge’s denial. We have a report from an entire medical team specializing in sexual abuse assessments. This report finds clear evidence of sexual abuse. If Madge wants Caris to be returned home, then she has to admit that Bryce has been molesting Caris and that Madge needs to end her relationship with Bryce.” Madge counters that there is no proof that Bryce has been molesting Caris. She defends Bryce and contends that Paul is making up facts. Travis is caught off guard. The conversation has quickly turned from talking about guidelines for the process to getting into the heart of the conflict. Rather than steering the clients back to discussing process issues, he allows them to continue their discussion of what has transpired. Even if Travis may not feel ready to discuss these issues, the clients themselves have indicated they are ready. He says to himself, “Trust the process.”

As the conversation proceeds, Travis helps the clients identify topics they want to dis- cuss, as well as their priorities in terms of the order and importance of each topic. Initially, Madge believes that mediation is about having Caris returned right away. She also wants Paul disciplined by his agency. Paul suggests the first order of business is establishing super- vised visits between Madge and Caris. He knows the importance of mother- daughter con- tact and attachment. Travis notes each of these concerns, validating their importance to each person without making judgment about which issues are more important or more easily negotiable. Travis withholds his concerns that talking about Paul being disciplined by his agency may be beyond the scope of the mediation; although there may be a better forum within the child protection agency to discuss this type of concern, he allows the parties to set the agenda for mediation. They are in the best position to know what topics are most important. Travis notes that a key benefit of mediation is that it can improve the working relationship between Madge and Paul. Madge vehemently opposes this notion. She says that she does not want an ongoing relationship with Paul. She wants him out of her life as soon as possible. To Madge’s surprise, Paul says that’s a goal he can live with.

By asking the parties about their goals for mediation, transformative mediators facilitate client self- determination, autonomy, and choice (Bush & Folger, 2005). Some clients may

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want to focus on problem solving and moving on. Some clients may want to focus more on reviewing the past, working through emotions, or enhancing their relationships. Tf M allows parties to determine the goals and focus of mediation. Although the mediator does not push clients to work on emotional or relational issues, they may change their minds and focus as mediation progresses. Initially, Madge wants nothing to do with Paul. If they are able to experience empowerment and recognition, however, Madge may eventually see the benefits of an improved relationship. The success of mediation, however, is not determined by whether the mediator achieves his goals. Although Travis offers a process that supports empowerment and recognition, he does not force these dynamics onto the parties.

In supporting client control over the process, transformative mediators to not strive to keep parties “on track.” Rather, they allows parties to delve into seemingly tangential issues, respecting the clients’ choice to discuss what they believe is important (Moore, 2014).

Caucusing

Caucusing refers to individual meetings between the mediator and each client. In settlement- oriented mediation, the mediator might use caucusing to work through impasses, probing each client to see what compromises they are willing to make, or using reframes and other persuasion techniques to change the parties’ thoughts about what is a reasonable settle- ment. In Tf M, caucusing allows each party to have time with the mediator to talk things through in a manner that they might not be able to achieve in joint sessions. When Travis caucuses with Madge, he asks if there are any concerns from the mediation session that she would like to discuss privately. Madge is silent for a few moments. Travis remains atten- tive without pushing her to speak. Eventually, Madge opens up and discusses her concerns about how the sexual abuse team handled their evaluation with Caris. She believes the team must have used leading questions or “those crazy anatomical dolls” to get Caris to say some- thing bad about Bryce. She asks, “If they’re so sure that Bryce molested Caris, then why haven’t they laid criminal charges?” Travis affirms that this is a good question. Madge says she does not want to ask this question because it might give Paul ideas about laying charges. Travis helps Madge think through what might happen if she asks why no criminal charges have been laid. Madge realizes that if they wanted to charge him, they would have done so. She decides to ask what evidence they have about the alleged sexual abuse. If they have no evidence, then they need to return Caris to her.

Travis asks an open question about Madge’s relationship with Bryce and how this medi- ation might be affecting them. Madge responds, “Everyone is assuming that Bryce is some sort of pedophile and woman abuser. He’s not! He’s a very kind and gentle person. He would never hurt Caris or me.” Travis validates Madge’s statement, “It must be frustrating to keep hearing these allegations about Bryce when you believe they are totally false.” Madge dis- cusses her frustration further. Initially, Madge believes there is nothing she can do to change people’s assumptions about Bryce. Travis asks, “If there was something you could do about their assumptions, what might that be?” Madge’s pessimism starts to lighten. “Maybe we could have another evaluation, by someone totally independent and trustworthy.” Travis supports her decision to raise this possibility with Paul.

The preceding example demonstrates a formal caucus. Informal interactions with each party outside the mediation also provide important opportunities for transformative medi- ators to connect with and empower their clients. Prior to a mediation session, Travis sees Paul in the waiting room. He asks Paul what concerns he may have about the mediation process. Paul says he feels that he is being placed on trial. He fears that Madge and Travis will question his assessment and decisions. He is also concerned that he will be forced to compromise on Caris’ safety. “All that Madge wants is for me to agree that Caris can come

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home. There’s nothing to negotiate here. She won’t accept that Bryce is molesting Caris, so there’s no way that I can agree for Caris to go home.” Travis listens carefully, striving to hear the underlying message so he can respond effectively. He strives to help Paul feel supported with his own agenda. Travis explains, “Mediation is not about making compromises over fundamental issues such as child safety. Since safety is a key concern, perhaps we can talk about creative ways to ensure Caris’ safety.” Paul remains skeptical that a creative solution exists. Travis is patient, knowing that it may take time for Paul and Madge to trust the pro- cess and be open to other solutions.

Insight

Mediators can facilitate insight by helping parties explore their thoughts and feelings in order to gain new or deeper understandings (Picard & Melchin, 2007). Gaining insight is an empowering experience; it provides the parties with fresh ways of looking at the conflict and each other, releasing new possibilities for managing their relationship and resolving their concerns. Initially, Madge is locked into the view that Paul is incompetent, uncaring, and stubborn. She does not think that he assessed the situation properly and now Caris is suffering because Paul rigidly holds onto his view that Bryce poses an ongoing threat to Caris. She does not seem ready to hear any information that runs counter to these beliefs. Travis validates Madge’s concerns without specifically agreeing or disagreeing with them. “It’s hard to see Paul as a caring and competent child protection worker when you think he has totally misjudged Bryce as a potential threat to Caris.” This comment allows Madge to vent her concerns about Paul. Travis then makes a statement that invites Madge to think about a new line of questioning. “I wonder if we’re getting stuck in a blame game. Madge, you have expressed some strong concerns about how Paul conducted his assessment. Paul, you have shared some strong concerns about whether Madge has adequately protected Caris. Think about how each of you feel when you hear the other person talking about you … Do you think it’s helpful for us to continue to discuss your concerns about what has hap- pened? Might it be more helpful now to talk about what we should do next, regardless of who might be to blame for what has happened in the past?” Travis allows the parties to determine the direction of the conversation, though his line of questioning gives the Madge and Paul an opportunity to think about their situation differently. Madge experiences an epiphany. Discussing what she dislikes about Paul is not getting them anywhere. It is only making Paul more defensive, leading him to be more critical of her. Each time Paul criticizes Madge or Bryce, Madge wants to lash out at Paul. Madge responds, “I think it’s time that we start focusing on the future,” indicating she is ready to reverse the negative conflict spiral.

Insights are those “aha” moments, times when we experience new levels of awareness or different ways of understanding a situation (Picard & Melchin, 2007). Transformative mediators may facilitate insight by asking questions about the parties’ goals, concerns, hopes, interests, and needs. Paul wants Madge to admit that Bryce has been molesting Caris. Travis responds, “Paul, it seems that before we can move forward on other issues, you want Madge to confess that Bryce has been abusing her daughter. Please help me understand whether your main goal is to secure a confession, or whether your ultimate goal is really something else.” This question helps Paul shift his thinking. Rather than focus on obtaining a confession he notes, “My real concern is ensuring Caris’ safety and welfare.” As he lets go of his focus on obtaining a confession, Paul feels liberated and more optimistic about their ability to come to some sort of agreement in mediation.

Transformative mediators use listening, questioning, and wondering strategies to help clients gain new insights. They do not impose insights or tell clients how to think. Although the mediator may have a strong hunch about what is driving the conflict or

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how different perspectives might lead to more effective decision making, the media- tor encourages curiosity so the clients can develop their own hunches, interpretations, and understandings (Melchin & Picard, 2009). “Madge, you’ve said a number of times that keeping Caris in foster care does more harm than good. I’d be interested to hear what you know about Caris’ foster care home, or what additional information that you’d like to know.” Madge may have been assuming that Caris is doing poorly in foster care. Travis’ prompt encourages her to think about the actual quality of care she is receiving and also to consider whether she could use additional information about how Caris is being treated.

Mediators can also help clients explore the sources of their feelings. If one party is feel- ing particularly frustrated or irate, the mediator might ask how his current anger might be related to past experiences (Melchin & Picard, 2009). By gaining insight into the source of feelings, the client might be able to let go and move on. Assume Paul said he felt hurt by Madge’s accusation that he was incompetent. Paul may be particularly sensitive to criticism because his parents or clinical supervisors may have been highly critical. By understanding that the severity of his reaction to Madge’s criticism was related to past experiences, Paul might be empowered to release his anger and develop a more amicable working relation- ship with Madge.

Creativity

When clients become embroiled in conflict, they tend to focus on their own needs and posi- tions, negating or demonizing those of the other party (Bush & Folger, 2005). This makes it difficult to explore creative solutions or engage in a more trusting relationship. Mediators can inspire the moral imagination of clients by providing a time and space where they can venture down unknown paths or develop new paths of their own (Lederach, 2005). There is no single technique that will inspire creativity in all situations. The following examples illustrate possible approaches; the mediator’s own creativity may be used to stimulate other approaches.

Madge and Paul view themselves as adversaries. They are reluctant to see one another as partners because collaborating with an enemy entails certain risks. Madge is concerned that if she shares her feelings and concerns with Paul, he might use these against her if the case goes to court. Paul fears collaborating with Madge because her stated goal is to have him fired or disciplined by his agency. Travis may engage them in a discussion of possibili- ties or hypotheses. “I know your relationship has been rocky, to say the least. I’m wondering what your relationship might be like if each of you had started off in a spirit of trust and cooperation. How do you think both of you would deal with concerns about Caris?” By engaging the clients in a discussion about a hypothetical situation, they can engage in a thought experiment about what might happen and what might be possible (Kurtz & Ritter, 2011). A thought experiment is less threatening than asking the parties to actually engage in a trusting relationship. As the parties envision a possible course forward, they can explore the benefits and risks without actually having to take the risks.

If the parties feel pessimistic about improving their relationship or reaching a posi- tive solution, the mediator might help them reframe past failures as learning experiences. Consider how many times business entrepreneurs falter before they become successful, or how many times scientists miss the mark before they discover amazing inventions. “Failure to obtain an expected result may be used as a precursor to new and better discoveries” (Kurtz & Ritter, 2011, p. 123).

Simply providing clients with a quiet time and space to process issues may be sufficient to spawn creativity. As Madge and Paul are mediating, Travis offers them a coffee break. He

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provides snacks and refreshments in another room. The break offers each of them time to think, process their feelings, and come back to the mediation with new perspectives.

Accessing Information

Information- based conflicts arise when clients are operating on different information. Paul believes that Bryce molested Caris. Madge believes Bryce is innocent. They may be relying on different sources of information, as well as different assumptions and interpretations of that information. Travis asks, “One of the key areas of dispute centers around whether Bryce has sexually abused Caris. Perhaps we could talk about the sources of information that each of you are relying on, and whether it would be helpful to obtain any additional sources of information.” Madge says she does not know anything about Paul’s process for evaluating the allegations of sexual abuse: Did Paul gather the information himself or did other professionals participate in the evaluation; what exactly did they hear from Caris; did they use anatomic dolls, leading questions, or some other methods to talk with Caris; and was there any physical evidence of abuse? Paul agrees to share the full report with Madge so they both have access to the same information. Madge discovers that the sexual abuse assessment team relied primarily on verbal feedback from Caris. There was no physi- cal evidence of sexual abuse and no physical evidence suggesting that Bryce abused Caris. Nobody actually spoke with Bryce during the assessment process. Given this information, Madge suggests that it would be helpful for Paul to meet with Bryce to conduct a further assessment. By asking questions, Travis helps Madge and Paul access information that can empower them to make better decisions.

Sometimes, lack of information relates to laws or agency policies. Although mediators should not provide legal advice, they can help clients gain access to necessary information about the laws or policies. Madge is not aware of her rights as a parent whose child is in foster care. Travis asks Madge what she would like to know about her rights. She says she wants to know whether and how she can talk to the foster parents about Caris’ transition and well- being. Paul agrees to provide this information. Madge also agrees to talk with her attorney about her rights. Once Madge knows her rights, she feels more confident negotiat- ing with Paul.

Growing with Conflict

Madge and Paul seem deadlocked over the issue of whether Caris can be returned home safely as long as Bryce is living with Madge. Travis can help them transform their conflict regardless of whether they are able to reach agreement on this core issue. Empowerment shifts arise when clients learn how to cope and strive under stressful or risky situations. Thus, the role of a mediator may not be to help parties resolve specific conflicts, but rather to help them stay with the conflict, engage with it, and perhaps even deepen it (Mayer 2009).

When Madge initially sought legal advice, her attorney told her not to talk with Paul because Paul was only seeking to gather information to support his case, that Bryce posed an ongoing safety threat to Caris. Unfortunately, avoiding communication with Paul also meant there was no way for the parties to manage their conflict in a constructive manner. Mediation provides Madge and Paul with a safe environment to engage in conflict. Travis provides them with time and space to think and communicate in a constructive manner. At times, they engage collaboratively, for instance, trying to work out a temporary plan where Madge can spend more time with Caris at the foster home. At other times, they revert to anger, frustration, relying on assumptions, and blaming. As a transformative mediator, Travis does not correct this behavior. Rather, he asks questions to facilitate insight and

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provide opportunities for Paul and Madge to determine the next steps (Bush & Folger, 2005). “It seems like the discussion is starting to go around in circles. Paul, you’re con- cerned that if Madge does not terminate her relationship with Bryce, then you cannot trust Madge to provide a safe home for Caris. Madge, you do not believe Bryce poses any threat. Perhaps we should think about whether it is worth continuing this discussion. Is there any- thing new or different that either of you would like to say to the other?” Both parties take time to think about the circular path of their discussions. Madge says, “We’re talking about my daughter! Of course we need to continue the discussions. I’m not just going to abandon her.” Madge starts to focus on Caris’ needs, articulating her concerns more clearly and con- fidently. She removes blame from her language. Paul also starts to speak more about Caris’ needs, transforming how both Paul and Madge engage in the conflict. The discussion is still heated, but much more productive. They do not necessarily agree on what is needed to promote Caris’ welfare, but they are no longer talking at cross- purposes.

Paul suggests that he could reassess the situation, including whether Bryce poses a risk to Caris. Madge questions how Paul could conduct such an assessment in a fair and neutral manner. “Clearly, you have a personal vendetta against Bryce and me. You’ve already made up your mind. What’s the use of you doing the same assessment over again?” Travis thinks the answer is obvious— have a new child protection worker assigned to do the second assessment. However, this answer is not obvious to Madge and Paul, so Travis withholds making any suggestion. His role is to empower the clients to identify their own solutions rather than to do this work for them. Paul responds defensively, “How dare you question my integrity! I’m a professional social worker. My sole professional interest is Caris’ well- being.” Travis helps them explore the possibility of a reassessment more deeply. “You’ve mentioned the possibility of a reassessment. It may have some merits, but also some poten- tial downsides. Would it be helpful to explore how a reassessment could be done in a way that meets both your concerns?” While building on the parties’ idea, this question opens a new line of discussion. Madge and Paul discuss how Paul’s supervisor could help oversee the process. Madge discusses how she could be more cooperative in the assessment. Madge appreciates the idea of having greater input into the assessment. They also agree that Paul needs to meet with Bryce directly. Paul discusses a number of options for making the assess- ment and shares information about assessment tools and protocols used by his agency. The outcome of the reassessment is not assured and Madge may still be upset with Paul’s deter- mination. Still, they have both re- exerted control over the decision making, rather than simply leaving it to the court to make a decision for them.

Society is rife with conflicts in which people have strong, opposing positions— abortion, capital punishment, affirmative action, global climate change, and so on. When people from various sides of the issues become entrenched in their views, it becomes dif- ficult to find common ground or consensus on how to proceed. Mediators can support transformation of conflict, even deeply entrenched conflict, by helping parties move from uncertainty, anger, and hostility to clarity, assertiveness, respect, and cooperation (Bush & Folger, 2005).

Empowerment versus Power Balancing

Under some mediation models, empowerment refers to helping a less powerful party nego- tiate on a more equal footing with the more powerful one. In other words, the mediator’s role is to level the playing field and ensure that mediation is fair to both parties (Mayer et al., 2012). One of the primary risks in this approach to empowerment is that the more powerful party will view the mediator’s power balancing interventions as demonstrating bias in favor of the less powerful party. According to Bush and Folger’s (2005) Tf M model,

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empowerment does not mean balancing power. They suggest that empowerment refers to supporting both parties to have a greater sense of control, self- determination, choice, and autonomy. Empowerment benefits all parties. It does not contain or constrict anyone’s power. Thus, transformative mediators provide both parties with an environment con- ducive to constructive conversations and decision making. From this perspective, power imbalances exist and they do matter, but the best way to help a person who is at risk of being overpowered is to provide support and empowerment for both.

Travis notices that Madge is less articulate than Paul, giving him a power advantage. In particular, she has difficulty presenting a coherent plan for how to ensure Caris’ safety (Houston, 2010). Travis helps Madge and Paul articulate their concerns and proposals more clearly and effectively, supporting empowerment for both clients rather than redistribut- ing power between them. Paul is much more knowledgeable about the legal framework for child protection issues. Travis could level the playing field by inviting Madge’s attorney to participate in the sessions. Instead, he empowers both by allowing them to decide whether and how to involve their attorneys, and how to manage any issues regarding legal informa- tion and advice. He trusts them to make good decisions for themselves.

Although one client may be more powerful in respect to some issues, the other cli- ent may be more powerful in respect to different issues. During mediation, Madge is highly anxious because the stakes are so high; she can hardly bear to be separated from her daughter. Paul is much more calm given his professional training and not having a personal stake. Their different levels of anxiety and calmness provide Paul with a power advantage. Still, Madge comes from a wealthy family, giving her a resource advantage over Paul’s poorly funded child protection agency. Paul does not want to waste scarce resources (including his own time) by going to court. Madge is very willing to invest time and money to win this case, whatever it takes. Travis does not try to redistribute their resources, emotions, or knowledge. To empower both clients, he provides them with opportunities to work through their concerns in a calm, collaborative, self- determined basis. The power differences become less important when the parties are engaging with each other in a respectful, constructive manner. Rather than using their power over each other, the mediator helps them use their power with each other to deal more effectively with their concerns.

RECOGNITION

When conflicts arise, people (including helping professionals) may become angry or defen- sive. This creates a tendency to focus intensely on one’s own interests and problems, to the neglect of the other client’s. Each client may project a style that is hostile, suspicious, aggressive, or rude, oblivious to the negative effects these behaviors may be having on the other person. Bush and Folger (2005) use the term recognition to describe dynamics in which conflicting clients move away from self- absorption and pay greater attention to the other client’s situation. Recognition shifts occur when clients become more open, attentive, sympathetic, respectful, and responsive to the situation of the person with whom they are negotiating. The experience of recognition means giving recognition, rather than receiving recognition (Bush & Folger, 2005).

When mediators facilitate transformation, note that the processes of empowerment and recognition are iterative, not following a particular sequence. At some points, the mediator may be facilitating empowerment. At other points, the mediator may be supporting recognition. When clients receive recognition, the validation helps them feel more optimistic and more empowered (Folger et al., 2010). Conversely, an empowered client is more confident and self- assured, making it easier for that person to offer recognition to the other.

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Each client can provide recognition to others through thoughts, words, and actions by

• reflecting on the others’ situation because of a general concern for their predicament; • consciously letting go of one’s own viewpoint in order to open up to seeing the others in a

different, more positive light; • trying to understand how what seemed to be a hurtful or irrational act by the others

might be the product of the other parties’ reasonable response to stresses they have been enduring;

• openly acknowledging one’s changed understanding of the others; • apologizing for having “thought poorly” about the other party or for past “retaliatory

conduct”; and • changing one’s behavior to accommodate the other’s interests, in light of the new under-

standing (Bush & Folger, 2005).

When recognition shifts occur, the style of communication becomes more holistic, concrete, and attentive (Donohue & Liang, 2011). The parties demonstrate that they are genuinely lis- tening to one another. Originally, Paul keeps stating that the situation at Madge’s home is too unsafe to send Caris home. When Madge argues that she would never put Caris at risk, she misses the opportunity to find out what Paul means by the situation being “too unsafe.” When Madge responds, “You keep saying Caris will not be safe,” she opens the opportunity for Paul to explain more fully. They may not agree with each other, but they do have better mutual under- standing. They are engaging in a learning conversation rather than a debate. The tone is more respectful, though they are not afraid to express their views in a passionate and frank manner. “Paul, I don’t understand why you’re assuming Bryce is some sort of pedophile. He’s a fine, decent man.” Frank discussion allows the parties to discover and understand each other’s per- spectives (Donohue & Liang, 2011). It may also pave the way toward working together and building consensus (Houston, 2010).

Transformative mediators support recognition shifts rather than command parties to rec- ognize one another. If parties are not ready or willing to demonstrate recognition, the mediator empowers the clients by respecting their choices. Strategies that mediators may use to support recognition include modeling recognition, facilitating recognition of emotions, facilitating rec- ognition of thoughts and perspectives, identifying areas of agreement and disagreement, sup- porting apology and forgiveness, and preparing clients between sessions.

Modeling Recognition

Recognition is comparable to the client- centered therapy concept of demonstrating empathy— that is, demonstrating you understand another person’s world from her frame of reference. Rogers (1957) identifies empathy as one of the core conditions2 for develop- ing a positive therapeutic relationship. Mediators (and all helping professionals) can model empathy by demonstrating the listening skills described in Chapter 1: attending, paraphras- ing, reflecting feelings, and summarizing. Attending refers to the use of body language, facial expressions, and gestures to convey that you are listening. As Madge describes the shock and horror that she experience when she learned Caris was taken into protective cus- tody, Travis stops taking notes, puts down his pen, and gives Madge direct eye contact. He shows he is providing his undivided attention. Without saying a word, Travis demonstrates how to listen respectfully. Whether Madge or Paul chooses to use similar attending is up to

2 The other core conditions are genuineness and unconditional positive regard.

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them. Attending with silence may facilitate key recognition shifts. Silence ensures that the mediator is not interrupting. It offers the parties a chance to reflect and respond. Silence also empowers them with the ability to choose the direction of the conversation.

Paraphrasing, reflecting paraphrasing, and summarizing are related means of convey- ing understanding and validation about what the client is saying. Paraphrasing refers to a restatement of the client’s thoughts, beliefs, stories, or perspectives. W hen mediators paraphrase, they not only demonstrate understanding to the prior speaker, they also pro- vide the other client with an opportunity to hear the story or perspectives in another voice (Bush & Folger, 2005). Paul views Madge as oblivious to the risks that Bryce poses to Caris. W hen she describes Bryce as a gentle, caring man, Paul tunes out what she is saying. W hen Travis paraphrases, “You’re telling us that Bryce has always been very good to you and Caris,” Paul finds it easier to hear her perspective. Because the words are coming from a neutral mediator, the message has a different impact. Rather than responding with irrita- tion or dismissiveness, Paul starts to hear without judgment. Travis modeled empathic listening without showing judgment. He validated what Madge said without agreeing or disagreeing. Paul and Madge may learn to follow Travis’ lead, paraphrasing each other without showing judgment. He was present in the moment. He was mindful that there may be more than one truth. As he mirrored what Madge said, he did not try to analyze, blame, or reframe.

Reflecting feeling refers to identifying specific emotions the client is experiencing and putting them into words. Travis observes Madge’s eyes starting to well with tears. “Correct me if I’m wrong, Madge, but it appears that you’re not just angry at Paul’s accusations. You also feel hurt.” Travis validates her feelings, again showing that one can attend to the oth- er’s feelings without judging those feelings or compromising on key issues. Though Paul remains silent, he is starting to pay greater attention to Madge’s emotional responses.

Whereas paraphrasing refers to restating what one person has just said, summarizing refers to reviewing what the parties have been saying over several exchanges. Summarizing helps clients remember key points in their conversation. It also helps them decide how to continue the discussion. Halfway through the session, Travis notes, “If it’s OK with both of you, perhaps I could summarize the key issues that you’ve identified [pause for response]. Paul, you’d like to work on a plan for Madge and Caris to spend more time together while Caris is still in care. Madge, you don’t think Caris needs to be in foster care, so you want to figure out how to have Caris returned to you immediately. Are these your main concerns?” Travis avoids reframing their concerns. He does not try to minimize their differences or change the meaning of what they are saying. By presenting their views starkly (without interpretation), Travis allows each party to hear each other and reflect more deeply on their differences. Travis also models trust, openness, and patience, showing Madge and Paul that it is OK to have disagreements and there is no pressure to come to a quick settlement. Mediators may also use summarizing to highlight key turning points in the process. “I’ve noticed a change in the tone of this session. Earlier, everyone was focusing on what hap- pened with Caris. Now everyone is starting to focus on the problem solving and how to ensure Caris’ welfare moving forward.

Whether one is paraphrasing, reflecting feeling, or summarizing, demonstrating empa- thy is most effective when the feedback is concrete, immediate, nonjudgmental, respectful, and authentic (Ivey et al., 2014). If Travis were to tell Paul, “I understand how you feel about this situation,” the statement is too vague to have much impact. The clients may also sense this response lacks genuineness. Neither Paul nor Madge knows whether Travis was truly listening and understanding. Likewise, if Travis says, “So, you made a hasty decision to take Caris into foster care,” Paul may feel disrespected. The use of the term “hasty” also models the use of inflammatory and judgmental language for both parties.

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Active listening provides clients with a feeling of support, knowing they are being heard and validated. It also allows clients to determine the flow of the conversation, including whether and when to transition to new topics (Moore, 2014). Although active listen- ing skills may seem simple, close listening and accurate reflections require high levels of mindfulness. Transformative mediators need to maintain constant awareness of their own thoughts and feelings to ensure that they do not impose their own agendas or perspec- tives on the parties. To avoid putting thoughts or words into a client’s mouth, it may be safer to use words that are close to what he originally said. Conversely, if you use different words, you may be able to show a deeper level of understanding and greater authenticity to your response. You can also establish the accuracy of your attempts at efficacy by checking back with the client. “Have I understood you correctly or is there something else you’d like to add?”

Another approach to modeling recognition is for the mediator to demonstrate genuine curiosity and interest in what each client is saying (Melchin & Picard, 2009). At one stage, when Paul is talking about the pressures of documenting all his observations, Madge sighs and turns her head to look out the window. She seems indifferent to what Paul is saying. Travis models curiosity, saying, “I wonder how the pressures of documenting your observa- tions has affected your work in Caris’ situation.” Madge begins to see how listening more intently to Travis may be helpful, particularly since they will need to work together to man- age their concerns.

Facilitating Recognition of Emotions

Transformative mediators use a range of strategies to support emotional communication, letting clients know that mediation is a safe place to discuss and acknowledge feelings. As noted earlier, one strategy is to reflect feelings, modeling that it is appropriate to discuss feelings during mediation. Reflecting also helps clients feel validated when they do discuss feelings, giving them an opportunity to examine their feelings further. Mediators may also ask questions to open discussion of emotions. “Madge, would you like to tell us how you felt when you learned that Caris was taken into foster care?” Questions may be used to allow clients to vent feelings. Questions may also be used to help clients explore events that gave rise to those feelings (L. Parkinson, 2011). Alternatively, mediators can encourage each person to reflect on the other’s feelings. “Paul, when Madge says hasn’t seen Caris for over two weeks, how do you think she is feeling?” Some transformative mediators are cautious about directly asking clients to express their feelings— or to reflect the feelings of the other person— because they do not want clients to feel forced into talking about feelings or pres- sured into acknowledging the other person’s truths (Bush & Folger, 2005). Transformative mediators may want to use such questions sparingly, and ideally when clients have indi- cated that they may be ready to broach such topics. Assume Paul specifically says that he does not want to discuss feelings and that he just wants to resolve the problem of ensuring Caris’ welfare. Travis should respect Paul’s wishes. During a caucus, Travis could explore why Paul does not wish to discuss his feelings. Ultimately, Travis clarifies that he is ready to support discussion of emotional issues, but that he will not put pressure on either client to talk about feelings or any other issue they do not want to discuss. Transformative media- tors do not use questions to gather information for themselves, but rather to help clients develop insights and share information between each other.

When parties do discuss emotions, transformative mediators allow the parties to vent, to express feelings in a passionate manner, and even to escalate the volume of the discus- sion. They do not try to diffuse the emotion, interrupt the flow, or redirect the conversation to safer topics (Cloke, 2001). The mediator could use a check in, for instance, “Both of you

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have been raising your voices. I’m hearing a lot of frustration. How do you want to proceed at this point?” This allows the parties to reflect on their current pattern of interaction and determine whether to continue in the same manner. If the parties decide not to change their pattern of communication to make the conversation more constructive,3 the mediator respects their choice.

Facilitating Recognition of Thoughts and Perspectives

To help parties view matters from each other’s perspectives, mediators can use role reversal and empathy- oriented questions. Travis might ask Madge, “Imagine you were in Paul’s situ- ation as the child protection worker in this situation. What do you think your main interests would be?” Alternatively, Travis might inquire, “When Paul was describing his process for assessing risks, what were the main points he was trying to make?” Each client may have difficulties seeing matters from the other’s perspectives, in part because of the tendency to feel that presenting the other person’s views means that you are agreeing. The mediator can remind both clients that showing you understand the other person does not mean that you agree with their views or positions.

Mediators should attend closely to the tone of the language used by each client (Donohue & Liang, 2011). W hen one client demonstrates recognition of the other’s thoughts and perspectives, the mediator could paraphrase the client. This paraphrase highlights the recognition shift and encourages both clients to demonstrate further empa- thy toward each other.

Identifying Areas of Agreement and Disagreement

In the midst of arguing, clients may be so focused on their own points that they do not recognize areas of agreement and disagreement. A transformative mediator could highlight similarities and difference by restating client goals, perspectives, positions, or interests, without taking sides or implying judgment. “Both of you seem to agree that Paul will re- assess Caris’ situation and whether she can return home safely. I think I’m hearing that the main difference concerns how Paul can conduct the re- assessment in an unbiased manner.” This amplifies the issues that need to be managed, while also acknowledging common ground. The mediator helps the clients reflect on their conver- sation from more than one perspective. Alternatively, the mediator could also an open question, “ W hat do you think are the primary areas of agreement and disagreement?” Helping clients recognize areas of disagreement helps them identif y decision points, specific times, or opportunities in which they can assert control and make decisions (Bush & Folger, 2005).

Supporting Apology and Forgiveness

Mediators may support clients in offering apologies or forgiveness. Given the importance of empowerment in Tf M, it is particularly important for the mediator to avoid coercing either client into apologizing or forgiving. During a caucus, Madge admits that she felt bad calling Paul an imbecile. Travis invites her to share her regrets with Paul. “Do you think it might be helpful to offer Paul an apology?” If Madge seems interested but has some con- cerns about apologizing, Travis could offer additional support. They could role- play giving

3 Under Tf M, the parties, not the mediator, define what is a constructive conversation.

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an apology so Madge could work on her wording. When Madge offers the apology, Travis could also support Paul in offering forgiveness. “How do you feel about Madge’s apology? Is there anything that you would like to share with her?” Transformative mediators do not direct clients to say something nice about the other. Making an apology or offering forgive- ness under pressure negates the value of these gestures. If a party is not ready or willing to offer an apology and forgiveness, the mediator should support those choices, too.

Preparing Clients between Sessions

Mediators can help clients prepare for recognition during mediation by offering homework or other strategies between sessions. If clients are having difficulty seeing each other’s per- spectives, the mediator could ask them to keep a journal of their experiences in mediation. Each page could be split, enabling the clients to put their own perspectives on the left half of the page and then adding their views of the other’s perspectives on the right half. The mediator could coach them on how to use nonjudgmental language, and how to look for areas of common ground and key differences. The mediator could also invite clients to have discussions with key support systems. Paul might ask his clinical supervisor to help him understand Madge’s situation and perspective. Madge could practice active listening with Bryce. “Do you think it might be helpful to practice your I- statements or active listening skills before the next session?” Whenever the mediators offer homework suggestions, it is best to do so in an inquisitive or tentative manner so the clients know the choices are truly up to them.

LIMITATIONS OF TRANSFORMATIVE MEDIATION

In one sense, asking about the limitations of transformation is the wrong question. Transformation is about changing the way that individuals, organizations, cultures, and the global society manage conflict. It is a movement based on high ideals and visions. How can one speak of limitations of a particular process when it is more of a movement or way of being rather than just a brief intervention? Success or failure is not based on the results of a single conflict or interaction but on whether society becomes more decent and moral through fundamental changes in the way that people deal with conflict (Bush & Folger, 2005).

Because there is relatively little research into the effectiveness of Tf M, its strengths and limitations are difficult to gauge. One of the most significant Tf M studies was a comprehen- sive evaluation of the REDRESS (which stands for Resolve Employment Disputes, Reach Equitable Solutions Swiftly) program. This program handled employment discrimination claims within the U.S. Postal Service. Researchers concluded that mediation facilitated the following positive changes:

• Participants improved their manner of communicating (more calm, more open, more confident, and more positive interaction).

• Participants established personal connections with each other. • Participants gained insight about themselves, the other party, and their conflict. • Discussion of a particular conflict often led to conversations about larger issues within

their relationship and at their workplace (Bush & Folger, 2005).

Although there is some support for the effectiveness of Tf M, questions for further study include the following: Under what does transformative negotiation work? What factors

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contribute to its effectiveness? How well does this model work when a significant power imbalance exists between the clients? To what extent does Tf M between a small number of individuals affect the way that their families, schools, workplaces, or communities deal with conflict?

A key question for Tf M, and all models of mediation, is, “ W hat will draw people in to try it?” On its own terms, the goal of transformation is not winning, settlement, fairness, or justice. Clients seeking these goals are likely to opt for other processes. For instance, clients embroiled in conflict are often angry with one another. They may prefer to fight it out, take revenge, or give the other side its just desserts. If they are not motivated toward transformation of their relationships, they may resist Tf M. Another potential downside of Tf M is that it takes longer than other models, particularly settlement- oriented models. Some people prefer a task- oriented approach designed to settle issues in an expeditious manner. Some people cannot afford the costs of longer- term interventions. In some situations, the main concern is the financial cost. In many situations, clients require early solutions for other reasons. There may be crucial ques- tions of safety, survival, or deprivation of basic needs; these concerns may not be satis- fied unless and until a settlement is reached. Further, Tf M does not guarantee either resolution or an improvement in relationships. The empowerment aspect of Tf M means that clients are free to decide to continue interacting in a confrontational or destructive manner.

Judges, administrators, employers, schools, and other potential referral sources may question the value of Tf M. They may prefer interest- based or settlement- based mediation because they are concerned about settling particular disputes, keeping cases out of court, and managing issues in a relatively quick, efficient manner. They may not fully understand the transformative approach, or may not value its potential to transform the way that people manage conflict in a more meaningful, lasting way. Governments, charitable foundations, and other funding sources may also question whether the process is too “touchy- feely” or whether it produces tangible results with a reasonable investment of time, money, and other resources.

Although transformative negotiation is arguably most effective when both parties are motivated toward transformation, a single party can employ the approach whether or not the other party follows suit. One party can offer empowerment and recognition to the other, regardless of whether the other returns the same. In fact, the approach is based on the premise of offering empowerment and recognition because they are inherently good, not because you expect reciprocity. “I will act morally, regardless of the actions of the other parties.” When evaluating the success of mediation, it is helpful to explore the extent of empowerment and recognition for each party, as well as whether and how their overall interaction is transformed.

Mayer (2009) suggests that conflicts are rarely transformed in short- term interventions such as mediation, particularly for enduring conflicts. To facilitate meaningful transforma- tion in the manner that conflicting parties engage with each other, longer- term conflict interventions may be needed. That said, Tf M could be a component of a multipronged approach to conflict transformation; it is not mutually exclusive of other methods to address the underlying causes of conflict.

Despite the potential limitations of Tf M, it has grown in popularity and has challenged many of the core premises of interest- based and settlement- based mediation. For those who are willing to engage in Tf M, it offers the potential for regaining a sense of control and solidarity of self, as well as a meaningful and more peaceful connection with others (Bush & Folger, 2005).

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KEY POINTS

• Tf M provides clients with an opportunity to alter the way they interact with each other, taking greater control over their lives, enhancing mutual understanding, and provid- ing them with the time, space, structure, confidence, and skills to manage conflict more effectively.

• Transformative mediators can facilitate client empowerment by • allowing clients to make decisions about the mediation process (agenda, focus,

guidelines for communication), • helping clients act on their own agency (making decisions on their own behalf), • orienting clients toward constructive conversation, • facilitating insight, • helping clients determine criteria for decision making, • staying out of the way of client interactions so they may process issues in a manner

that they think is appropriate or necessary, • supporting clients’ ability to stay with conflict (rather than avoid or withdraw), and • showing faith in clients’ ability to make good decisions for themselves.

• Transformative mediators can facilitate client recognition by • providing clients with a safe time and place to engage in meaningful conversation; • orienting clients toward each other (supporting mutual understanding); • modeling active listening skills through attending, reflecting feeling, paraphrasing,

and summarizing; • asking clarification questions; • facilitating genuine and empathic listening between the parties; • helping clients identify areas of agreement, disagreement, and decision points; • supporting client decisions to apologize or offer forgiveness; • allowing clients to open verbal conflicts and express strong emotions; and • helping clients use role reversal and perspective taking (considering alternate points

of view).

DISCUSSION QUESTIONS AND EXERCISES

1. CRITICAL ANALYSIS: Review the earlier description of the mediation between Paul and Madge.

a. Identify three ways that Travis stays “out of the way” of Paul and Madge’s conversa- tions and decision making.

b. Identify a situation in which Travis could have balanced power, but chose not to do so. What are the potential advantages and risks of how Travis responded to the power issues in this situation? What is the difference, if any, between “empowering” and “power balancing?”

c. Identify an exchange in which Paul insulted Madge, and the mediator did not try to “separate the person from the problem.” As a mediator, how would you have han- dled this insult? Provide your rationale, relating it to the principles of Tf M.

d. How would you rate the success of this mediation? The parties did not reach agree- ment about Caris returning home. How does this affect your assessment of the effectiveness of this process?

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e. What agreement do you think would be best for Madge, Paul, and Caris? How would you ensure that you allow the clients to reach their own decision, rather than guide them to your preferred outcome?

2. TRANSFORMING DIALOGUE: Miranda is mediating between Thea and Tony, two therapists who share office space. For each of the mediator’s following responses, iden- tify which interest- based skills she is using. For each interest- based skill, develop an alternate response based on a transformative skill.

a. MIRANDA: What concerns do you hope to resolve in this meeting? b. THEA: Tony monopolizes the use of our group conference room. He is an inconsiderate

bastard. He leaves the room like a pigsty. On top of that, he is so rude that he doesn’t have the courtesy to respond to my emails.

c. MIRANDA: If I’m hearing you correctly, your main concerns are about time sharing of the conference room, keeping the room clean, and treating each other with respect.

d. TONY: Respect? How do you expect me to deal with this obsessive- compulsive control freak? She has nothing to do but kvetch at me because she has so few clients.

e. MIRANDA: I can hear that both of you are frustrated. I want to remind both of you about the guidelines we agreed on at the beginning of the meeting. Everyone agreed to avoid name calling and to use respectful language.

f. TONY: You should see the malicious emails I have to deal with each day. g. MIRANDA: So it sounds like both of you are concerned about the way that you commu-

nicate. Perhaps we could make a list of all your concerns and then prioritize which ones to problem- solve first.

h. THEA: When we first agreed to share office space, Tony said he only needed the confer- ence room once a week. Now, he uses it every evening.

i. MIRANDA: What are some options for sharing the office space in a more effective manner?

j. TONY: We could split the time 50- 50 on a calendar, but if one of us is not using the space then the other could have it.

k. MIRANDA: Interesting option, Tony. What are some other options, Miranda? 3. EMPOWERMENT VERSUS POWER BALANCING: For each of the following

examples, identify whether the mediator is using empowerment or power balancing. For each example of empowerment, describe how the mediator could have used power balancing. For each example of power balancing, describe how the mediator could have used empowerment.

a. During intake, Minnie the mediator discovers that one of the clients, Chester, stut- ters when he is anxious. She coaches him on how to avoid stuttering.

b. Eunice and Ed are arguing over financial issues affecting the services in their agency. Ed is much more knowledgeable about budgeting than Eunice. The mediator asks Ed to explain the figures in their budget to Eunice.

c. Tyler and Perry have reached an impasse over whether their agency should provide family planning services to girls under age 18 who are afraid to tell their parents that they are seeking birth control. Tyler threatens to quit the agency if he does not get his way. The mediator asks both clients whether talk of quitting the agency is helpful to the mediation process.

d. During mediation of a bullying allegation, Zoe keeps interrupting Oliver. The medi- ator reminds Zoe that they agreed not to interrupt the other as one of their guide- lines for communication.

4. GOOD MATCH: Nia (age 82) and Josh (age 79) are neighbors in a nursing home. Nia has mild cognitive impairment. She is generally happy, but she thinks in very concrete terms and has trouble with insight. Josh is mildly depressed and looks at the world from

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a very pessimistic perspective. They both hate each other. Nia thinks Josh has a crude sense of humor. Josh dislikes everything about Nia: her loud dresses, her whiney voice, her bouffant hairstyle, and so on. Their constant arguing is having a negative effect on other residents and staff, so the nursing home administrator refers them to mediation. Is Tf M appropriate for these clients? What are the potential challenges and opportunities for a transformative mediator with Josh and Nia.

ROLE- PL AY 7.1: “GL ASS CEILING”— EMPOWERMENT VERSUS POWER BAL ANCING

Dr. Ana Pinellas is an associate professor at Conflictia State University where she has taught for 14 years. She believes that Dr. Cory Danson, the dean of her college, has been blocking her promotion to full professor because she is a woman. The college has a reputation for being sexist, with women having to be more productive than men in order to be promoted. Dr. Danson rejects Ana’s claims, suggesting that while Ana has more than 20 publications, her research is of inferior quality and the journals publishing her research have low stan- dards. Ana goes to her union to grieve the case. As part of the grievance procedure, Ana and Dr. Danson are referred to Madison to mediate the case. Ana is concerned that she cannot advocate strongly for herself because she could get into deeper trouble. Dr. Danson is con- cerned that Ana has a wicked temper and has unreasonable demands. He is also worried that he might have a slip of the tongue that could get him into deeper trouble.

To prepare for this role- play, Madison should consider whether and how she will attend to the power issues in this case. Madison could consider various methods of empowering the parties. Initially, Ana will be reserved and will lack confidence. Dr. Danson will argue that the case should just go to arbitration, as he has nothing to fear from a neutral arbitrator (who just happens to be male).

Debriefing : Identify examples of a “negative conflict spiral” from the role- play. What empow- erment shifts arose in this role- play (if any)? What other opportunities could Madison have used to support empowerment? Where there any instances when Madison took control away from the parties, or used power balancing rather than empowerment? Was TfM appropriate for this sce- nario? Why or why not?

ROLE- PL AY 7.2: “PROBATION PROBLEMS”— SELF- ABSORPTION

As part of his sentence for writing graffiti on public buildings, Greg (age 16) was required to do community service with an organization that cleans the neighborhood. The program director, Della, contacts Greg’s probation officer, Mr. Oliver, to ask for Greg to be removed from the program. Della finds Greg to be an argumentative, lazy, and rude hoodlum. Greg thinks Della is racist, tyrannical, and self- centered. Greg says he did not do the graffiti and that he only admitted it to avoid jail time. Greg believes he has already done enough time cleaning other people’s garbage. He thinks Della is just trying to keep him around to do more work. Della says she cannot sign off on Greg’s paperwork because he simply hasn’t done the work required of him. Mr. Oliver is reluctant to have Greg removed from the pro- gram. A breach of the conditions of his probation means that Greg has to go back to court— and possibly to jail. Mr. Oliver meets with Greg and Della to mediate a solution. At the outset of this informal mediation, both Greg and Della are very self- absorbed, arguing their own points, focusing on their own stories, and not listening to each other. Each feels like an innocent victim in this conflict. This presents Mr. Oliver with an opportunity to practice

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recognition strategies. Even if he cannot bring them to agreement, he thinks it would be helpful for them to transform the way that they deal with conflict.

Debriefing : Identify three examples where the clients were not listening to each other. For each example, which strategies did Mr. Oliver use (or could he have used) to support recognition? How successful was this mediation? What criteria are you using to evaluate success?

ROLE- PL AY 7.3: “FUNDING FIASCO”— PROCESS ISSUES

When Chris Madhouse donated $30 million to Conflictia Shelter for the Homeless, every- one was thrilled. The shelter planned to use the money to expand the shelter and double the number of clients it could serve. Recently, the shelter discovered that Chris earned this money from a fraudulent Ponzi scheme. Edie, the executive director wants to return the money to those who were defrauded. Devon, a key member of the board of directors says there is no legal responsibility to return the money and the shelter is putting the money to good use, not putting the money in any private pockets. Edie and Devon have a long his- tory of conflict. Edie questions Devon’s ethics. Devon believes Edie lacks leadership abili- ties, including the ability to make tough decisions for the good of the agency. Both have trouble listening to each other. Each likes things done his or her own way. They hire Midge, a mediator, to help them transform the way they deal with conflict. For this role- play, Midge will help Devon and Edie make decisions about the mediation process, timing, topics, and goals. Initially, Devon and Edie will have difficulty agreeing on anything. To Devon’s dis- may, Edie will keep going off on tangents.

Debriefing : Which indicators of empowerment were manifest in this role- play? How did the mediator contribute to, or detract from empowering the parties? If Midge were to use a more settlement- focused approach, what meeting guidelines would she have suggested? Compare these guidelines to the ones that Edie and Devon decided.

MAJOR ASSIGNMENT

Assignment 7A: End- of- Life

The participants for this role- play are Maureen, Wendy, and Farouk. Maureen is a media- tor who has been hired to help Wendy and her father- in- law, Farouk, decide how to handle health decisions for Wendy’s husband, Habib. Two years ago, Habib suffered a traumatic brain injury as a result of a motorcycle accident. Doctors have told Wendy that he is in a persistent vegetative state. Recently, she has been thinking about having feeding tubes and ventilators removed, allowing Habib to “die with dignity.” Farouk questions the doctors’ prognosis, believing that Habib will recover, given time and Allah’s will. He vehemently opposes removal of Habib’s life supports. He threatens to go to court or to the Conflictia legislature, “I will do whatever it takes to ensure that Wendy does not try to murder Habib.” Wendy is Habib’s next of kin. Habib has no advanced directives and has not appointed a durable power of attorney (in other words, there are no written instructions about his wishes or who should make decisions on his behalf ). Wendy is agnostic. Farouk is Muslim (religions of the parties could be changed for the purposes of this role- play). Both Wendy and Farouk have consulted lawyers.

Wendy’s Confidential Facts Wendy loves Habib dearly. She feels like she has been mourning his loss for the past 2 years. Although Wendy hoped he would somehow recover, she has come to accept that he will

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remain in a persistent vegetative state until he dies. Wendy does not wish to disrespect her father- in- law, including his religion. However, she has never felt respected by him. He opposed Wendy’s marriage to Habib from the outset since she was not Muslim and not willing to convert. Wendy believes there is a God, but she does not practice any religion. She is uncertain about what happens after death, but she believes that no God would want a person to be kept alive on “artificial supports.” Habib’s work was the family’s primary source of financial support. Wendy has two young children (2 and 4 years old). She is barely able to make ends meet on her salary as an assistant manager in a fast food restaurant. Medical bills are also taking a toll on Wendy’s ability to support her family. She cannot afford to go to court and pay for an attorney. She thinks there might a “Death with Dignity” attorney who would be willing to represent her on a pro bono basis. Wendy does not know much about Islam and she certainly does not understand why Farouk is so opposed to removing the artificial life supports. Wendy firmly believes that Habib would want her to allow him to die. Habib felt ambivalent about religion ever since Wendy met him. She does not think he would care what Islamic law says about removing life supports. Wendy trusts the medi- cal staff who have been taking care of Habib. They support her decision to remove the life supports. Regardless of what happens in mediation, you plan to go ahead with asking the medical staff to remove his life supports. Wendy knows nothing about Tf M, but she agreed to try it to see if the issues can be settled without going to court. She knows that Farouk is not comfortable speaking with women. She also knows that she can get a rise out of him by talking about liberal ideas, including women’s rights, freedom of religion, and a person’s right to die with dignity. She sometimes refers to him as “old man” or “my very estranged father- in- law.”

Farouk’s Confidential Facts Farouk is outraged that Wendy would consider removing Habib’s life supports. Habib is Farouk’s only son and he has a right to live. As the Qur’an (17:33) says, “Do not take life, which Allah made sacred, other than in the course of justice.” He believes that euthanasia is equivalent to murder. Farouk believes that Wendy hates Muslims and the Islamic religion. He believes that Wendy turned Habib against his own religion. Farouk thinks that Habib may be in a coma and that people in a coma can fully recover. He consulted with his imam who said, “Miracles can happen. People should not interfere with Allah’s wishes.” When Farouk is angry, he tends to raise his voice and bang his fist on a table. Wendy triggers his anger when she insults him or his religion. Farouk has money to hire the best lawyers and take the case to court. He also has money to help pay for Habib’s care. He has not offered financial help to Wendy because he thinks she would simply use it to buy “foolish things for herself like makeup and skimpy dresses.” Farouk sees Wendy as irresponsible and irrever- ent. He would like to have a better relationship with his grandchildren, but he does not know how to raise this topic with Wendy. He thinks she is blocking contact so that he can- not introduce the children to Islam and their native culture.

Maureen’s Confidential Facts This scenario involves a conflict of values, religious beliefs, and personalities. You may not be able to help them reach agreement on whether to remove Habib’s life supports. However, as a transformative mediator, that is not your goal. Identify possible ways that you can facilitate empowerment and recognition. Consider the empowerment and rec- ognition strategies listed under Key Points in this chapter. Select four or five transforma- tive strategies that you want to practice (e.g., modeling active listening, helping parties

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access useful information, helping clients identify decision points). Remember that there is no fixed order of phases or skills to be used for Tf M. Through close listening, you may identify opportunities for transformation. Support these opportunities rather than forcing them on the parties. W hen you watch your video and debrief, identify occasions when you supported empowerment or recognition, as well as opportunities where you could have used them.

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C h a p t e r e i g h t

family Mediation and a therapeutic Approach

LEARNING OBJECTIVES

Upon successful completion of this chapter, you will be able to:

• Describe how mediation may be applied to various forms of family conflict. • Identify ways in which legal, psychological, and cultural issues need to be taken into

account in family mediation processes. • Use premediation and caucusing to assess clients, prepare them for mediation,

address power and safety issues, and work with their attorneys. • Incorporate therapeutic strategies and skills from family systems therapy, rational-

emotive behavior therapy, narrative therapy, and solution- focused therapy into family mediation processes.

• Determine whether and how to involve children in mediation processes.

In this chapter, we focus on mediating conflict among family members, with particular focus on mediation in separation and divorce situations. This chapter embraces a broad definition of family, including people related by blood, marriage, guardianship, and adoption, as well as people who view themselves as family because they live together, share bonds of intimacy, love one another, or accept responsibility for the care of one another. When working with fami- lies, mediators may use a broad range of approaches, including the interest- based, settlement- focused, and transformative models described in earlier chapters. This chapter highlights a therapeutic approach to mediation, not because it is the only or best approach for working with families, but rather because it is an approach that was developed specifically for family mediation.1 While other models of mediation may be used with families, therapeutic media- tion (TpM) deals with particular family dynamics, including the strengths, vulnerabilities,

1 Therapeutic mediation approaches have also been used in nonfamily contexts such as victim- offender medi- ation (Hallevi, 2011); however, these models are not as well developed as therapeutic family mediation.

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roles, rules, norms, transitional challenges, and interactive nature of families (Emery, 2011). Whereas a settlement- focused approach emphasizes legal rights and responsi- bilities of family members, for instance, a TpM focuses on the their wishes, needs, roles, and functions as fam- ily members. TpM addresses psychological, emotional, and relational issues in order to improve interactions and family functioning (Moore, 2014). TpM helps clients process feelings such as hurt, anger, and frustration. TpM also helps clients renegotiate their relationships, including the rules, roles, and boundaries that govern their family interactions (Irving & Benjamin, 2002/ 2012). In other words, thera- peutic mediators help families manage the turbulence of change (L. Parkinson, 2011), nour- ishing and relaunching relationships beyond their ruptures instigated by separation (Molgora, Ranieri, & Tamanza, 2014). TpM shares certain strategies with transformative mediation; for instance, both approaches allow for storytelling, validation, relationship healing, and empow- ering clients to make their own decisions. Therapeutic mediators also use a number of strat- egies that extend beyond the transformative model: assessing clients, providing individual sessions to help clients address underlying emotional and psychological issues that are affect- ing each client’s ability to mediate, setting ground rules to ensure that parties feel safe, and making use of specific therapeutic techniques within the mediation process. In contrast to transformative mediators, therapeutic mediators tend to take greater control over the media- tion process. Therapeutic mediators believe that clients would replicate dysfunctional pat- terns or communication if mediators simply allow them to determine how to interact during mediation (Kjøs, Tjersland, & Roen, 2014). Therapeutic mediators acknowledge their influ- ence on clients, including the mediation process and their decisions (Fong, 2015). Whereas most mediation models focus on the future, TpM recognizes that it may be important to help clients deal with the past before they can move onto the future. When clients are experiencing acute grief, loss, or anger, they may have difficulty contemplating the future and reconstruct- ing their lives (Emery, 2011).

A mediator could explain TpM to separating clients as follows:

Separation can be a very challenging time. It is a time of transition and sometimes, great turbulence. It is also a time when parents need to make important decisions about their chil- dren, their finances, and their own futures. Mediation is designed to help you construct good decisions for your children and for yourselves. I am not here as a judge or as an attorney, but rather as someone who can help you explore what has been going on and what arrangements you would like to make for the future. If you have been experiencing sadness, anger, frustra- tion, or hurt, we can use mediation to work through these feelings. If you are frustrated with the conflict in your relationship, we can use mediation to learn new ways of communicating , managing conflict, and transforming your relationship. I am here to listen. I am here to offer support. I am here to help you move forward with your lives.

TpM is most often used by mediators with backgrounds in psychology, social work, fam- ily counseling, or mental health. They possess the training, knowledge, and skills to apply specialized therapeutic techniques in a competent manner (Emery, Rowen, & Dinescu, 2014). One of the debates about TpM relates to the boundary between therapy and TpM. Mediators are not supposed to engage in dual relationships with parties, so it would be unethical for a mediator to act as a therapist for the same clients (Association of Family and Conciliation Courts, 2000). Proponents of TpM suggest therapeutic mediators pro- vide mediation in a therapeutic manner, but do not cross the boundary into providing

The greatest thing in family life

is to take a hint when a hint is

intended— and not to take a

hint when a hint isn’t intended.

—Robert Frost

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therapy (Irving & Benjamin, 2002/ 2012). The main critique of this approach is that the blending of roles may be confusing to clients (E. Katz, 2007). If the mediator delves into relationship or psychological issues from a therapeutic perspective, then could one client exploit the vulnerabilities exposed by the other party during the negotiation and problem- solving stages of mediation? If the mediator is assessing the clients from a therapeutic perspective, could this lead to mediator biases in helping the parties come to agreement? As you read this chapter and engage in the role- plays, consider what it means to be a thera- peutic mediator, as well as how to define the appropriate boundaries between TpM and therapy.

In some forms of family mediation, mediators with mental health backgrounds comediate with mediators who have legal, financial, or accounting backgrounds. This allows the mediator with the mental health background to focus on relational issues (e.g., how a child of will be co- parented by divorcing parents), while allowing the other mediator to focus on issues of a financial nature (e.g., child support, spousal support, tax and estate planning, and division of property).

This chapter begins with an overview of how mediation may be used in a range of family contexts (Malek & Burgess, 2013). The following section explores specific areas of knowledge that are particularly important for mediation in the context of separation and divorce. The third section describes TpM strategies that may be used in individual meetings with clients and their attorneys. The balance of the chapter describes specific therapeutic models and strategies that can be incorporated in TpM with families, as well as ways to engage children in the mediation process. This family mediation chapter does not delve into the general phases of the mediation process, as this information has already been covered in prior chapters.

CONTEXTS FOR FAMILY MEDIATION

Mediation has been shown to be helpful in a range of family conflict situations, includ- ing separation, divorce, marital conflict, prenuptial arrangements, parent– youth conflict, child protection issues, elder care and guardianship, end- of- life decision making, family business disputes, and estate planning. As this list suggests, family conflict often arises in the context of life transitions such a marriage, separation, death, and movement through adolescence and other stages of the family life cycle. Mediation can be used to help families manage the instability, anxiety, and stress that often accompanies such changes (L. Parkinson, 2011). It can also help families renegotiate their roles and relationships within the family as these transitions occur (Irving & Benjamin, 1995). Note that a divorced family is still a family (Emery, 2011), even though the rules, roles, and relation- ships may have changed.

Separation and Divorce

The term family mediation is mostly commonly associated with mediation for families going through separation and divorce. During separation, families are faced with a number of legal, relational, and emotional tasks and challenges (Taylor, 2010). Legal issues include custody, visitation, child support, alimony, division of family property, and possession of the marital home. Custody has two dimensions: Legal custody refers to which party(ies) will have the legal authority and responsibility to make major decisions for the children (e.g., education, religion, health decisions); physical custody refers to where the children will reside (e.g., primary residence with mother or father). Joint legal custody signifies that both parents will share responsibility for making major decisions. Sole legal custody refers to one par- ent having responsibility. Visitation denotes how time will be shared with the nonresident

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parent.2 Visitation rights also include access to information about the child’s health, edu- cation, religious upbringing, and other information. Australia, California, and a number other jurisdictions have replaced legal terms such as custody and visitation with more fam- ily friendly terms such as family responsibilities, time sharing, and parenting plans (Emery et al., 2014). This language is intended to promote collaboration and focus on the needs of the child, removing connotations of child custody as a parental right for which each parent needs to fight (Singer, 2014). Child support refers to the financial obligations of the non- resident parent to pay for the needs of the child. Alimony indicates the financial obligations of a higher- earning person to provide period support payments to a former spouse to help pay for the former spouse’s needs.3 Division of property refers to how the former spouses will split their assets, including their home, bank accounts, investments, retirement savings, and personal property. Possession of the matrimonial home means the resident spouse continues to live in the family home with the children until a specified time, for instance, when they reach the age of majority or graduate from college.

Dealing with the legal tasks upon separation and divorce is complicated by relational and emotional issues (Nichols, 2013). The parties are transitioning from their former roles as spouses and parents living together as an intact family to their new roles as sepa- rated spouses and co- parents living apart. They may be experiencing an array of emotions, ranging from heightened anger, anxiety, and frustration to hurt, disappointment, and loss. Although parties may also experience relief, freedom, and happiness, there is generally some period of dealing with more challenging emotions. Positive readjustment typically takes 2 to 3 years following separation (Cleak, Schofield, & Bickerdike, 2014). Family mediation is designed to help parties manage the legal, relational, and emotional issues that arise in the separation process. Specifically, mediation has been found to help separat- ing families

• develop clear, detailed, personalized, and balanced arrangements that promote the well- being of all parties following divorce,

• follow through on agreements without needing to go to court (thus, reducing legal costs), • reduce parental conflict and enhance parental collaboration, and • enhance involvement of the nonresident parent (often the father) following divorce

(Baitar et al., 2013; Emery et al., 2014; Lowenstein, 2009; Molgora et al., 2014; Pruett, Ebling, & Cowan, 2013).

The research evidence is mixed, at best, on whether mediation contributes to the long- term emotional and psychological well- being of the children and parents (Emery, 2011; Pruett et al., 2013). One of the strongest predictors of post- separation adjustment for children is the level of conflict between their parents. So, to the extent that mediation can lower con- flict, children should benefit. Certainly, there are many factors affecting the outcomes of family mediation, including which model of mediation is used, the experience and skills of the mediator, and the level of conflict at the time the parties enter mediation (Lowenstein, 2009). Research evaluating the effectiveness of mediation often compares the experiences

2 Resident parent refers to the parent with whom the children have their primary residence. Sometimes, this parent is called the custodial parent. The other parent may be called a nonresident parent or noncustodial par- ent. Unfortunately, these labels have negative connotations, suggesting the custodial parent “has possession” of the child, or the nonresident parent is somehow less important than the other parent. In practice, it is preferable to use the parents’ names (e.g., Mary, Frank, Mom, Dad) rather than these labels.

3 The paying spouse could also pay a one- time lump sum in lieu of ongoing support payments.

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of parties going through mediation with parties going through court. The financial and emotional costs of going through a polarizing court trial are typically much higher than those in mediation (Lowenstein, 2009). It is important to note, however, that relatively few separation and divorce cases make it to the trial stage. Most often, attorneys help the par- ties negotiate a solution (Ferguson, 2013). Also, administrative judges in the family court system may facilitate agreement through settlement conferences.

Although family mediation frequently comprises parents who were married or lived together, family mediation could include parents who have never married or lived together. Family mediation may also involve same- gender couples, stepparents, grandparents, sib- lings, and other family members seeking custody or visitation (Emery et al., 2014). In addi- tion, parties seeking custody or access may include surrogate mothers, egg donors, sperm donors, and family members with no genetic ties (DiFonzo & Stern, 2013).

The legal and psychological issues may vary depending on who is involved in the media- tion process. In some jurisdictions, for instance, grandparents have no legal right to access or visitation, though it may be in the child’s best interest for grandparents to have some role in their lives. Similarly, a stepparent who helps raise a child but has not legally adopted him may be at a legal disadvantage in relation to the biological parents’ rights. Mediators may include people in the mediation process whether they have custodial or visitation rights recognized by relevant family laws. Mediation may be based on interests and relationships rather that extend beyond basic legal rights.

Marital Conflict

Whereas divorce mediation is designed to help couples separate, mediation of marital conflict can be used to help couples remain together (E. Katz, 2007). When couples seek assistance for marital relations, they typically employ marriage therapists rather than medi- ators. Such therapists may use mediative strategies (i.e., as emergent mediators rather than as formal mediators). Consider a couple that disagrees about how to raise their children, particularly in terms of setting limits and enforcing them through various forms of disci- pline. A marriage therapist could teach the couple conflict resolution skills and model them by helping them negotiate more effectively. For instance, the mediator could help them use I- statements and listen to each other’s views about parenting. The mediator could also help them identify underlying interests: “When all is said and done, what are the most important lessons that you want your children to learn?” Blending a mediative approach in therapy, family counselors can help couples reflect on their emotional experiences, develop insights, strengthen their spousal relationship, improve communications, and manage particular conflicts more effectively (Baitar, Buysse, Brondeel, De Mol, & Rober, 2012). A mediative approach to martial therapy acknowledges conflict is a normal part of marriage. The purpose of the mediative interventions is not to eliminate conflict, but rather to trans- form the way that couples engage with it. Mediation approaches can strengthen the couple’s capacity for decision making, helping them appreciate each other and their reducing stress in dealing with conflict (Folger et al., 2010).

Prenuptial and Cohabitation Arrangements

Couples may use prenuptial or cohabitation agreements to make decisions about child custody, visitation, support, alimony, and division of property in the event of separation or divorce. A primary advantage of entering such an agreement prior to or during mar- riage is that the parties have a positive, loving relationship. They are not experiencing the stress, anger, frustration, hurt, or sense of loss that frequently accompanies separation. By

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dealing with important decisions while relations are good, couples can pre- empt or mini- mize future conflict. About 3 percent of American couples have a prenuptial agreement (Kennedy, 2014). Requests for prenuptial agreements are often initiated by a spouse with higher wealth or income, wanting to protect his or her assets, or ensuring that any personal or family business is not put at risk by the possibility of divorce. Couples who do not marry may decide to enter cohabitation agreements because the laws do not provide them with the same protections that legally married spouses have. Although both prenuptial and cohabi- tation agreements can be legally enforceable, they may be challenged on a number of bases. First, a contract may be nullified due to coercion, misrepresentation, fraud, or withholding information. Prenuptial and cohabitation agreements are more likely to be enforced if each spouse or partner has independent legal advice. Independent legal advice ensures that both parties understand the legal ramifications of the agreement, as well as their rights under the law (Kennedy, 2014). Further, courts are not bound by the terms of a prenuptial or cohabi- tation agreement in relation to child custody, visitation, and support. The court may con- sider the terms of any agreement, but ultimately, a court’s decision is based on the child’s best interests. Prenuptial and cohabitation agreements may be useful even if certain terms are not legally enforceable. Ideally, both spouses feel the agreement is just and balanced, making them more likely to abide by the agreement without challenging it in court.

Although spouses can enter prenuptial and cohabitation agreements without the aid of a mediator, mediators can help clients work through emotionally challenges and ensure that they are considering all relevant issues and choices. Consider how you might feel if your fiancé simply presented you with a prenuptial agreement, just days before your wed- ding, and said that you needed to sign it. Mediators can help clients process feelings about the prenuptial agreement, gaining insight into their questions, fears, and motivations. Mediators can provide a process that is collaborative, avoiding adversarial dispositions that might accompany lawyer- led negotiations. Mediators can also make sure that both clients feel the process is fair and that both have sufficient input into the agreement, reducing the chances that one spouse will challenge the enforceability of the agreement. Mediators can help clients develop agreements on sensitive family matters that are not intended to be enforceable in court, for instance, how many children they plan to have, how they will share responsibility for childcare, where they will live, and how they will communicate with deal with their in- laws. Some couples use prenuptial agreements to identify how they will use social media and to limit what they may post online (to ensure privacy).

Parent– Youth Conflict

Mediation can be used to help families manage intergenerational issues including parent– youth conflicts. Adolescence is often a challenging period of transition for families. As children mature into adolescents and young adults, their needs and expectations change. Parents may have difficulties managing these changes, particularly with respect to issues such as curfews, house rules, chores, school attendance, homework, choice of friends, dat- ing, and drug and alcohol use. Mediation can be used to help parents and youths renegoti- ate their family roles, rules, and expectations. Mediation is particularly helpful in enhancing communication and supporting family decision making (Eisele, 2003). Mediators can help parents and adolescents express their concerns without blame or contempt, as well as teaching them methods of listening, validating each other’s concerns, and creative prob- lem solving. Consider, for instance, a youth who rebels against having a 9 pm curfew on the weekends. When the mediator explores whether the issue is just about the “right time” for a curfew, the family discovers that the underlying issues relate to trust and safety. By focusing on these issues, they can identify ways that the youth foster trust and the parents

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can ensure their child’s safety. For instance, the youth might agree to maintain cellphone contact and allow the parents to check in with periodic text messages. Some parent– youth mediation programs derive referrals from the juvenile justice system; rather than prosecut- ing youths for juvenile delinquency or status offenses,4 the police, judges, or probation offi- cers refer parents and youths to mediation to resolve issues within the family milieu (Bush, Hershman, Thaler, & Vitkovich, 2009).

Child Protection Issues

In child protection mediation,5 parents, children, child protection workers, and other stake- holders may be brought together to deal with alleged or substantiated child protection issues. The purpose of child protection mediation is not to determine whether abuse, neglect, or abandonment has occurred, but rather to develop a plan to ensure that children’s safety, sta- bility, and welfare are protected into the future (Aguiniga et al., 2015). Conflicts may arise at various levels. Initially, conflict between the parents and child protection worker may center on disputes about whether certain forms of maltreatment have occurred, or what is necessary to prevent future maltreatment. When child protection allegations are raised, parents often feel defensive. Child protection mediation can be used to help engage parents and protection workers, building trust, de- emphasizing blame, focusing on the future, and fostering collaboration (Giovannucci & Largent, 2013). Conflict may also arise between the parents and foster parents or group home workers, including disputes over how and when the parents may communicate or meet with their children while they are in care. Children may have concerns about their treatment while in care (quality of care and place- ment stability), as well as questions about how they may be reunited with their parents. Children’s voices may be brought into the mediation process directly, or through the aid of an advocate such as a guardian at litem or court- appointed special advocate.

Research suggests child protection mediation offers a number of benefits, such as

• empowering parents and children with an opportunity to be heard in a fair and balanced process;

• resolving cases without the need to go to court, facilitating permanency planning in a timelier manner and reducing adversarial relations between families and the child protec- tion system;

• engaging parents, extended family members, friends, and community services to partici- pate more fully in the planning and care of children in need of protection; and

• improving parental compliance with treatment plans (Giovannucci & Largent, 2013).

The benefits of mediation vary with the model of mediation used. Whereas a settlement- oriented model focuses on settling cases so they do not need to go to court, therapeutic and transformative models focus on enhancing communication and fostering better working relationships between families and the child protection system. Mediation helps level the power differential, as child protection workers may be less likely to exert power with the presence of a neutral third party. During mediation, mediators can ask protection work- ers to use clear language to explain agency rules, parent rights, and options for resolving

4 Juvenile delinquency offenses are criminal charges, such as theft or assault, which may be made against people of all ages. Status offenses are noncriminal charges, such as breaching curfew or missing school, which can only be made against minors (people under age 18).

5 Child protection mediation is sometimes called dependency mediation.

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cases (Patterson, 2009). Mediators can also help parents and protection workers develop and articulate creative treatment plans focusing on the child’s best interests. Note that the concept of confidentiality is different in child protection mediation than in other contexts, given the potential vulnerability of the children. Protection workers are mandated to pro- tect children from maltreatment, so they may need to act on information learned in the mediation process. Thus, parents know that information shared in mediation could be used in future court proceedings. Still, the mediator encourages both parties to share informa- tion in mediation, as open communication in mediation may prevent cases from having to go to court. To the extent that the parties trust each other in mediation, they can actually safeguard the privacy of the family.

Elder Care and Guardianship

Elder care and guardianship mediation may be used when family members have concerns about an elder’s mental and physical abilities to care for herself (Wall & Spira, 2012). Ideally, the elder person has mental capacity at the time of mediation and the family can jointly plan for the elder person’s future care in a non- crisis situation. Often, however, the elder’s mental capacity is in question or a crisis situation has arisen, for instance, the elder has fallen and broken a hip, and family members are having a conflict regarding who is responsible and how they will care for her. If the elder has mental capacity, the elder can represent herself (with or without the aid of an attorney). If the elder has diminished mental capacity, then an advocate may participate on the elder’s behalf. Issues that may be handled in mediation include decisions about healthcare, end- of- life decision making,6 funeral planning, finan- cial concerns, estate planning, religious preferences, living arrangements, driving and trans- portation, and allegations of elder abuse or neglect (Barry, 2015; Braun, 2012; Bagshaw, Adams, Zannettino, & Wendt, 2015). Families may have conflicts over whether an elder family member needs guardianship, as well as what form of guardianship or care the elder needs (Wall & Spira, 2012). Although guardianship mediation is often initiated because of legal issues, such as who will be legally responsible to make decisions for the elder person (Murphy & Rubinson, 2009), mediation may also deal with the underlying causes of family conflict (e.g., sibling rivalry, financial stress, elder abuse, or differences in values). Elder care mediation could also include professional or paraprofessional caregivers, particularly when there are concerns about the quality of institutional or homecare providers. Premediation is particularly important in elder care cases, as the mediator needs to determine whether the elder person has cognitive or social challenges that necessitate having an advocate or other accommodations to the mediation process. If there is conflict over whether the elder person has sufficient decision- making capacity, the mediator could refer the clients to a mental health specialist to provide a cognitive capacity assessment (Barry, 2015). Further, the mediator should assess whether mediation can be offered in a safe and fair manner, given the potential for issues such as elder abuse and coercion (Bagshaw et al., 2015; Braun, 2012). In addition to ensuring the elder person has an advocate, mediators can enhance participation of elders by slowing down the process, holding sessions during a time of day when the elder is best able to participate, ensuring the elder person understands the pro- cess, and providing individual sessions to allow that elder to express concerns that may be difficult to discuss in joint sessions.

6 For instance, decisions about whether the elder will be maintained on feeding tubes, respiratory aids, or other life supports, as well as decisions about the timing and manner of dying (in jurisdictions that permit euthanasia) (Barsky, 2010; Braun, 2012).

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Potential advantages of elder mediation include

• empowering elders and family members to make decisions for themselves rather than giving this responsibility to courts;

• reducing family conflict; • teaching elders, family members, and care providers how to resolve problems jointly; • developing individualized plans to meet the needs and interests of the elders, family

members, and care providers; • resolving issues in a less costly and more collaborative manner than in courts (Bagshaw

et al., 2015; A. Crampton, 2013).

End- of- Life

End- of- life mediation can be particularly challenging because it raises a complex combina- tion of legal, ethical, moral, religious, and emotional issues (Murphy & Rubinson, 2009). Consider a family that is demanding a particular surgical treatment for an elder parent; the physicians, hospital ethics committee, and insurance company are refusing to comply with their wishes because they view treatment as “futile.” Given religious beliefs and emotional issues, family members may not be ready to accede to medical advice. They feel compelled to do everything they can to help their parent survive. Given constraints of what is possible medically and legally, the choices may be more limited than in other contexts of mediation. Under these circumstances, the greatest value of mediation may be in its capacity to facili- tate understanding, respect, and closure, rather than to facilitate creative problem solving (Bierlein, 2007). Thus, mediation may have a therapeutic effect, helping family members come to terms with the patient’s condition and what may or may not be medically pos- sible. Mediation may also be used to help family members consider quality- of- life issues, including palliative care, rather than simply focusing on whether to provide curative or life- sustaining treatment (Barsky, 2010).

Family Business Disputes and Estate Planning

In terms of family business disputes and estate planning, mediation can be used in both pre- ventative and responsive manners. As a preventative process, mediation can bring family members together to discuss what they would like to see happen in the event of a particular person’s death, for instance, the primary owner or manager of the family business, or elder parents who own a vacation home, jewelry, and other property that could become the focus of a dispute after they pass away. Mediators may invite parties to consult with attorneys, financial advisors, or accountants to help them make good decisions from legal, business, and tax perspectives. Many people do not like talking about or planning for death, whether it is their own death or the death of a family member. However, using mediation to make succession plans for a family business or to determine what should happen to significant family property can pre- empt conflict, strengthen family relationships, and foster a smooth transition of management and ownership of family businesses (Baker, Lutringer, & Caras, 2015). Mediation can also help ensure that the intent of a person who creates a will is pre- served (P. Fisher, 2010). If family members are involved in estate planning and understand the intent of the testator, then they are more likely to follow the will, rather than challenge it. When helping clients determine whether they want to mediate estate planning issues, you might ask them, “When you are thinking about what you’d like your children to inherit, do you want to leave them a messy conflict that they need to manage while they are still in mourning, or would you rather provide them a fair, well- planned transition that promotes

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good will and peaceful family relations?” Mediators can also help clients draft ethical wills, statements about the morals, values, or blessings that they want to pass along to their chil- dren (Aging with Dignity, n.d.).

If families experience conflict after the testator has died, mediation can be used to help fam- ily members resolve issues without going to court (Shell, 2013). Sometimes, the terms of a will are general or unclear (e.g., “personal property to be divided equally”). Other times, a family member may question whether the terms of a will were changed under coercion or without sufficient mental capacity of the testator. Conflicts may also occur between co- executors of the estate as they make decisions about division of the property or how to invest and preserve it. Mediation saves families the costs of going to court, while also affording them a process to help manage the emotional issues arising after the loss of a loved one. When dealing with estate issues, adult siblings may re- enact sibling rivalries from when they were young children. Disputes often arise over matters that have more symbolic value rather than financial worth (Shell, 2013). Mediators can help parties reflect on the values and beliefs that their parents wanted to pass along, beyond the specific items and financial value of their parents’ estate. One of mediation’s key advantages is that families can deal with their issues in a confidential forum, avoiding the embarrassment of a public court hearing and preventing business competitors from learning private information about the family business (Murphy & Rubinson, 2009).

SUBSTANTIVE KNOWLEDGE BASE FOR FAMILY MEDIATORS

In some contexts of practice, mediators do not necessarily require knowledge of the sub- stantive issues they are mediating. For instance, a community mediator who is handling a neighbor– neighbor dispute over a barking dog does not need an intimate knowledge of what causes dogs to bark or what laws govern this type of dispute. The mediator needs to be an expert in the mediation process rather than the substance of the dispute. If the parties require information about the cause of barking or the laws pertaining to nuisance and noise ordinances, the mediator can help them gain access to this information. In divorce and other realms of family mediation, however, knowledge of substantive information pertain- ing to the conflict is very important. Given the vital legal ramifications of divorce, child pro- tection, juvenile justice, and other forms of family mediation, mediators should know about the legal frameworks in which these conflicts arise and can be resolved. Consider a media- tor who facilitates an agreement whereby the parents trade visitation time with the child for lower child support payments. This agreement may not be in the child’s best interests and could be overturned by the courts. Although mediators are not responsible for providing legal advice, it would be helpful for the mediator to know enough about the legal framework to raise questions, invite the parents to access legal advice, or help them determine whether their proposed agreement in is the child’s best interests. Similarly, it is helpful for mediators to have some knowledge about the emotional issues that parents experience during the separation process. Although mediators do not provide therapy, it would be therapeutic for mediators to demonstrate understanding about the issues that the parents are facing and to provide information about ways that other separating families have dealt with such issues.

The types and depth of information needed by family mediators depend on the model of mediation they are using. Evaluative mediators who intend to provide families with evaluations of how a judge would determine spousal support, for instance, would require thorough knowl- edge of the legislation, regulations, case law, and relevant precedents regarding spousal support. For an interest- based mediator helping families develop a parenting plan, it would be valuable to know creative parenting options that other families have used. For therapeutic mediators, it would be particularly helpful to have a working knowledge of family systems, patterns of family

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communication, and power dynamics within families. Transformative mediators use a client- centered approach, meaning that they trust clients to be experts in their own lives and empower them to make their own decisions. Rather than providing information or expertise to families, they may assist families in gathering information that they wish to have. Thus, it may be helpful for transformative mediators to know trustworthy sources of information.

In most jurisdictions, there is no absolute requirement for a person to be licensed or accredited in order to provide family mediation. However, accreditation is gener- ally required for mediators who want to handle court- referred mediations. Further, most attorneys will not refer clients to mediation unless the mediator is accredited by a state- recognized authority. Each jurisdiction has its own laws defining competence and quali- fications to be an accredited family mediator (e.g., the number of hours of training time, supervised practice, and, sometimes, proof of competence through testing or video- recorded role- plays). Standard II- A of the Association of Family and Conciliation Courts (2000) Model Standards of Practice for Family and Divorce Mediation7 identifies three areas of substantive knowledge required for family mediators:

• knowledge of family law • knowledge of the effect of family conflict on parents, children, and other participants,

including knowledge of child development, domestic abuse, and child abuse and neglect • knowledge of the impact of culture and diversity

The following sections provide examples of knowledge pertaining to each of these substan- tive areas. If you intend to practice as an accredited family mediator, you will need to fulfill the requirements of your state’s accreditation laws, which typically includes more in- depth training in each of these substantive areas. People with legal backgrounds may already be familiar with family laws. People with social work and mental health backgrounds may already be familiar with many of the psychosocial and cultural issues pertaining to separa- tion and divorce.

Legal Frameworks: Laws and Processes/ Systems

This section provides an overview of laws that are pertinent to family mediators. Because laws vary from state to state (and may be amended from time to time), it is important to receive training specific to your jurisdiction and to engage in continuing education to ensure that your knowledge is kept up to date. As noted earlier, family laws cover child custody, visitation, child support, alimony, division of property, and possession of the marital home. Family mediators should also be cognizant of child protection laws, particularly the duty to report reasonable suspicions of child abuse or neglect. In addition, mediators should be aware of laws protecting the confidentiality and privilege of mediation and related pro- cesses (Simon & Willick, 2016). In general, laws governing court- referred mediation estab- lish privilege, meaning that information shared in mediation cannot be used in future court processes. These provisions are designed to encourage clients to be open and honest in mediation, without fear that anything they share can be used in court (i.e., the mediator

7 Note that the Association of Family and Conciliation Courts (2000), Family Mediation Canada (n.d.), Conflict Resolution Education Connection (n.d.), and Academy of Professional Family Mediators (2014) are voluntary professional associations. Their codes of ethics, professional guidelines, or standards of prac- tice are not legally required for all practitioners, although states and provinces may incorporate these or similar provisions into their regulatory laws.

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may not be compelled to testify in court unless all parties waive their right to privilege). Family mediators should also define confidentiality and its limits in the agreement to medi- ate, so the parties are clearly informed about these expectations. If there are no laws pro- tecting the privilege (for instance, because the case is not court- referred or because the mediator is not accredited), then confidentiality provisions in the agreement to mediate may protect the privacy of the information shared by parties in mediation; however, courts could overrule the confidentiality provisions in such contracts.

The family laws in most jurisdictions suggest that decisions about child custody and visitation should be made on the basis of the child’s best interests (Murphy & Rubinson, 2009). Family laws typically identify factors to be considered when determining the best interests of the child, for instance, the child’s age and developmental needs, each parent’s capacity to provide for these needs, the child’s wishes (depending on the age and abil- ity of the child to express preferences), the length of time the child has lived in a stable environment, domestic violence, the emotional ties between the child and each parent, and the willingness of the parent to encourage the child to maintain a close relation- ship with the other parent. The statutes do not prioritize the factors, leaving judges with broad discretion on how to apply them. For a listing of family law statutes and com- parisons between states, see the American Bar Association (n.d.) website (http:// www. americanbar.org/ groups/ family_ law/ resources/ family_ law_ in_ the_ 50_ states.html). Courts may also consider additional factors not specifically listed in the legislation. Some statutes identify particular factors that may not be considered, for instance, prohibitions against assuming maternal or paternal preference, or prohibitions against determining best interests based on the socioeconomic status of either parent. If parents are focusing on their own needs and interests, mediators may invite them to focus on the best interests of the child, including the factors that the laws say should be considered. Mediators can also help family members reframe custody and visitation as parenting plans, focusing on practical issues such as who will be responsible for making which decisions, where will the child’s primary residence be, and how will the parents share time with the child (Singer, 2014). Table 8.1 includes a comprehensive list of topics that may be included in parenting plans. Some courts have particular formats and topics that need to be included in parenting plans. For further information on parenting plan topics and formats, see the Association of Family and Conciliation Courts website (http:// www.afccnet.org/ Resource- Center/ Resources- for- Professionals).

TABLE 8.1. Parenting Plan Topics

1. Child’s primary Residence 2. time- sharing schedule (regular)

3. primary Decision- Making Responsibility

(for education, health, religion, after-

school activities, summer activities, etc.)

4. time- sharing (holidays, vacations,

birthdays, and other special occasions)

5. Authorized Caregivers (extended family,

babysitters, other)

6. parenting guidelines (curfews, house

rules, expectations of child, manner of

discipline)

7. Communication between parents 8. Access to Information about Child

9. Authorization for travel with Child 10. Addressing special Needs of Child

11. Dealing with emergency situations 12. Addressing Changes (and preferred

methods of resolving conflict)

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Although some jurisdictions give preference to joint custody (Brinig, Frederich, & Drozd, 2014), custodial decisions should ultimately be made on the basis of each child’s particu- lar needs and the parents’ abilities to meet these needs. If parents seem to have unreason- able expectations about joint or sole custody, mediators could refer them to their attorneys for advice about whether a court would be more likely to order joint or sole custody. For instance, in high- conflict situations, judges may be reluctant to order joint legal custody because such an arrangement could increase the conflict and put the child at greater psy- chological risk. When a child has been living primarily with one parent for an extended period, judges may be reluctant to upset the status quo. To avoid taking sides, mediators can refer clients to their attorneys, rather than directly providing this information to the clients. Mediators also need to be careful that they are not overstepping their professional roles by providing legal advice. Mediators may invite families to consider creative options for par- enting plans; for instance, one parent may assume primary responsibility for healthcare, the other parent may assume primary responsibility for education and after- school activities, and they may share responsibility for religious upbringing.

When cases go to court, judges often identify which parent or parents will have cus- tody and which parent will have visitation, without going into a detailed parenting plan. Mediation allows parents to go into greater detail, covering topics such as how the parents will share holidays and special occasions with the child, guidelines for household chores and bedtimes, dietary issues, details for dropping off or picking up the child from the other parent, strategies for parental communication, and values or morals that the parents agree to model for the children. Parents can be very creative in their parenting plans.

Most jurisdictions have child support guidelines that define minimum child support payments; parents may agree to higher amounts depending on the child’s needs and the parents’ priorities (Ehrlich, 2013). Mediators may ask the parties (with the assistance of their attorneys) to share financial information and make child support calculations. Mediators should be aware of the formulas used to calculate support payments. Some state’s guidelines calculate support based on the nonresident parent’s income; others cal- culate support based on a sharing of both parent’s income. Calculations can be compli- cated by factors such as shared physical custody, childcare costs, nonstandard medical costs, costs of post- secondary education, and tax considerations (e.g., which parent may claim a dependency exemption or child tax credit). Various statutes also define circum- stances in which courts may deviate from the usual formulas for child support (e.g., higher payments to support a child with special needs). For a link to the guidelines in your state, see the National Conference of State Legislatures (2016) website (http:// www.ncsl. org/ research/ human- services/ guideline- models- by- state.aspx). If a mediator does not have a firm grasp of child support guidelines, then it may be better to have the clients’ lawyers negotiate this issue. In addition to child support payments, parents may agree to pay directly for particular items (e.g., winter clothes, summer camp, or dental insur- ance). Child support payments are typically easier to enforce, as wages can be garnished if the nonresident parent falls behind on support payments. Some mediators encourage parents to mediate based on a “cost- sharing approach” rather than based on the parents’ incomes. Under this approach, the parents develop a budget for the child’s needs and then determine how each parent will contribute to the child’s needs. By framing child support in terms of the child’s needs, the problem- solving process fosters greater parental cooperation (Murphy & Rubinson, 2009). Parents who collaborate well could establish a child’s checking account, where both parents contribute to the account each month and each parent has authority to use money from that account for expenses directly related to the child’s needs. The child’s budget could be reviewed periodically to ensure that the account has sufficient funds and that the child’s needs are being met. Although a court

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could overturn a child support agreement that offers lower support than that required under the state’s child support guidelines, a court may be hesitant to do so if both parents are content with the agreement. After all, aren’t the parents in the best position to deter- mine what is in the child’s best interests?

The purpose of alimony is to balance the difference in earning capacities between divorcing spouses, particularly where one spouse has given up earning capacity to care for the children and family during the marriage. Determining alimony or spousal support can be even more complicated than calculating child support. Courts determine alimony based on a number of factors, for instance, the income levels of each spouse, the length of time they were married, education, employability, the earning capacity of each spouse, the age and health of each spouse, tax consequences, contributions of each spouse to the marriage, the standard of living established during the marriage, and the income, financial resources, and expenses of each spouse (including housing, food, healthcare, etc.) (Ehrlich, 2013). The weighting of these factors is not prescribed by law, giving judges broad discretion in determining alimony. Unfortunately, this broad discretion leads to lack of coherence and predictability of alimony decisions. The statutes and court decisions governing spousal sup- port vary from state to state. For instance, some states still allow marital fault to be consid- ered. Although online alimony calculators can be used to estimate support, courts (and families) are not bound by these estimates.

Mediators who help clients with alimony issues may start by having each client com- plete budgets and financial disclosure statements, often with the assistance of their attor- neys. Mediators can emphasize that alimony agreements may be overturned if either spouse does not fully and accurately disclose their income and other financial information (busi- ness interests, investments, properties, etc.). Some states have limitations on the number of years that alimony can be ordered. These limitations may be based on the length of the mar- riage and, or the earning capacity of the receiving spouse. Sometimes, a portion of alimony is provided to “rehabilitate” the receiving spouse, supplying additional financial support so the spouse can receive education, retraining, or certification to increase earning capacity. If a spouse stayed home during marriage to care for young children, alimony may be pro- vided to ensure that this arrangement can continue until the children no longer require a stay- at- home parent. If a spouse remarries, alimony may stop, although this depends on the type of alimony (for instance, rehabilitative alimony may continue to allow the spouse com- plete retraining or education). Most often, alimony is paid on a periodic basis, for instance, monthly or biweekly to mirror the schedule by which paying spouse receives his salary. Some clients agree to a one- time, lump- sum payment in lieu of periodic support. A one- time payment allows the parties to put the issue of spousal support to rest; if either spouse’s employment or financial needs change, they do not have a right to renegotiate spousal sup- port. Although some states allow marital fault (infidelity, abuse, and other causes of mari- tal breakdown) to be considered, there is a trend toward not considering marital fault as a criterion for alimony. Where family laws do allow fault to be considered, mediators can focus the parties on their financial needs and ability to pay, moving them away from the blame game and a debate over who was responsible for the divorce. Mediators should note that some jurisdictions do not recognize common law marriage, civil unions, or domestic partnerships, so nonmarried partners may not be entitled to alimony or spousal support (Ehrlich, 2013).

Division of family property laws also vary. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin use a community property approach, whereby all property and debts acquired during marriage are divided equally (50- 50) regardless of who holds legal title or ownership of the property during marriage. Property and debts acquired by each person prior to marriage or after the date of separation remain

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with that person. If a person owns a business or stocks coming into the marriage, the increase in value during the marriage would be divided equally. Inheritances received dur- ing marriage are also excluded from division. For states without community property laws, property is divided equitably rather than equally (Ehrlich, 2013). When determining what is fair or equitable, courts may consider factors such as the financial contributions of each spouse, the value of a spouse staying home to care for the children and family, and the earning capacity of each spouse. Although a court may decide that a 50- 50 split is fair, an equitable distribution could range to a 60- 40 or even a 70- 30 split.

Generally, courts cannot consider adultery, domestic violence, or other so- called mari- tal misconduct when determining division of property (Ehrlich, 2013). Family laws typi- cally require full disclosure of each party’s assets, debts, and income. If a spouse tries to hide assets or inflate debts, the court may take such factors into consideration when determining an appropriate division of property. Spouses may decide how to divide their family prop- erty as they wish, regardless of what the family law statutes say; whereas courts retain the right to alter child custody and support to meet the child’s best interests, courts usually defer to agreements on division of property (unless there is evidence of coercion, fraud, or financial misrepresentations). Identifying which property is subject to division may require legal advice. In addition, valuing property may require assistance from property appraisers, business valuators, and actuaries (e.g., to calculate the value of social security, pensions, insurance, or other complex investments). Often, family mediators with mental health backgrounds focus on parenting and relational issues, leaving the financial issues to professionals with legal and/ or financial backgrounds.

Generally, the resident (or custodial) parent has a right to stay in the marital home with the children until they reach the age of majority. When parents separate, they face addi- tional costs related to having to maintain two homes rather than one. Keeping the matri- monial home may not be financially feasible, so the parents may need to consider selling the matrimonial home and moving into less expensive housing (Ehrlich, 2013). Mediators can help families with creative solutions, for instance, renting the basement to help pay for housing expenses, living together with extended family members (permanently or tempo- rarily), or waiting to sell the matrimonial home until market prices improve. While financial factors need to be considered, mediators can also help parents focus on their child’s best interests, for instance, being able to remain in the same neighborhood to minimize the dis- ruptions of divorce (allowing the child to remain in the same school and get together with neighborhood friends). One of the most challenging situations arises when the resident parent wants to move away with the child. There may be very good reasons for the parent’s wish to move; however, moving makes it more challenging for the nonresident parent to have meaningful time together with the child. Again, mediators can help parents develop creative solutions, for instance, using video conferencing for the nonresident parent to do homework or read to the child (LaMarca, 2012), using holidays and vacations to enhance the time shared by the child and nonresident parent, and focusing on the quality of time together rather than just the amount of time.

When spouses petition for divorce they are typically required to submit a parenting plan and, or meet with a mediator to help them develop one (Arizona Supreme Court, 2009). Courts require decisions on custody and access prior to granting final orders for divorce. Some families may need temporary court orders or agreements before they are able to reach a more permanent solution. When mediators help clients develop agreements, the clients may need to consult their attorneys to determine whether the attorneys should draft a legally binding separation agreement, or whether the terms of the mediated agree- ment should be incorporated into a court order. While separation agreements and court orders are both legally enforceable, there may be legal advantages to one approach versus

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the other (e.g., the relative ease of enforcing a court order for child support if one spouse falls behind on payments).

When filing for divorce, spouses identify their grounds for divorce. In states that allow fault- based grounds, they may identify adultery, abuse, or other specified marital miscon- duct as the reason for divorce. In most states, spouses can declare “irreconcilable differences” as the grounds for divorce (Ehrlich, 2013). Using non- fault grounds for divorce removes stigma and blame, encouraging spouses to focus on a positive post- divorce relationship as coparents rather than remaining stuck in past problems. Once a divorce decree is granted, the divorce is final. Division of property cannot be revisited unless there is proof of fraud, misrepresentation, or coercion. Custody, visitation, child support, and spousal support can be reviewed by the court, particularly when there are material changes in circumstances. For child custody, material changes could include one parent developing a substance use disorder, or the child experiencing severe anxiety as a result of ongoing conflict between the parents. In relation to child support, the child might need orthodontic work or other medical attention. In terms of spousal support, one party might lose a job or get married. Mediation may be a useful alternative for helping parties deal with post- divorce issues and changes. Sometimes, parties can make changes without having to return to court; if they need to return to court, mediators can help them develop terms that could be submitted to the judge for an order on consent of the parties.

At all stages of mediation, mediators should ensure that clients have access to inde- pendent legal advice. To avoid conflicts of interest, mediators should not refer clients to particular attorneys, although they can help them access attorneys through lawyer referral services or lists of mediation- friendly attorneys (e.g., attorneys who are certified to practice collaborative law). Sometimes, clients cannot afford attorneys, so mediators could provide information about legal aid or sliding fee services (if available). If clients refuse legal advice and want to act on their own behalf (“pro se”), mediators should document that they sug- gested legal advice and have the client sign a section of the agreement to mediate, indicating they declined to have legal advice. Unfortunately, many people forgo legal advice simply because they cannot afford legal fees and cannot access free legal services (Murphy & Rubinson, 2009). In some instances, the issues in mediation may not require legal advice— for instance, if the parties are negotiating a cooperative parenting plan. If there are complex legal issues, such as division of property where there is a complicated estate, mediators may decide not to mediate unless both parties have legal counsel.

In addition to laws governing separation and divorce, mediators should consider admin- istrative rules governing mediation in their state. For cases referred by the court, there may be a limit on the number of sessions, limits on the issues that may be addressed in media- tion (parenting issues vs. financial), information that the mediator must share with the par- ties during the orientation to mediation, and particular forms that the mediator must use (e.g., financial disclosure forms, agreement to mediate, or final agreement forms).

Psychosocial Issues

Mediators benefit from having a sound understanding of psychosocial issues that parents and children experience during the processes of separation and divorce. When people marry, their entire identity becomes invested in their roles as husband and wife. As wedding vows typically express, marriage is about love, honor, and mutual responsibility for the rest of their lives. When marriages start to falter or fail, spouses often feel a mix of guilt, depres- sion, distress, and intimacy issues (Frisby, Booth- Butterfield, Dillow, Martin, & Weber, 2012). Stress may be exacerbated by issues such as drug and alcohol problems, financial troubles, domestic violence, or infidelity. There are a broad range of reactions to divorce,

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with some spouses experiencing a sense of freedom, growth, resilience, and relief. Other spouses have much greater difficulty moving on. The experience of divorce may lead to lower self- esteem and confidence, anxiety and mistrust around relationships, preoccupa- tion with what others think, and heightened anger or depression (Frisby et al., 2012). By understanding the various experiences that divorcing spouses experience, mediators can tune in and offer empathy. Therapeutic mediators may also use therapeutic techniques (as described in the “Therapeutic Strategies and Skills” section) to assist spouses with post- separation adjustment issues. They may also help clients renegotiate their relationships as co- parents rather than as spouses.

While a full exploration of psychosocial issues related to divorce is beyond the scope of this chapter, the following sections highlight psychosocial issues related to the best interests of the child, high- conflict divorce situations, and community resources and supports.8

Best Interests of the Child Judges, mental health professionals, child custody evaluators, social scientists, and other experts have long struggled with how to define and assess what is in a child’s best interests. Each child is unique. The circumstances of separation, divorce, and the parents are also unique. Accordingly, it would be naïve to think that there is one best parenting plan or set of arrangements for all children following separation and divorce. Still, it is helpful for mediators to be familiar with the typical challenges and opportunities for children who are dealing with their parents’ divorce, not to play expert and tell parents what to do, but rather to help the mediator raise questions that the parents may consider as they construct a parenting plan designed to meet the best interests of their child. Mediators view parents as experts in their own lives, including the capacity to know what is best for their child.

Research suggests that a key predictor of a child’s post- separation adjustment is the level of conflict between the parents (Allen, 2014; Viry, 2014). When children are exposed to high interparent conflict they are more likely to experience anxiety and other emotional problems, difficulty establishing positive relationships, troubles at school, and conflict with the law. Prolonged exposure to high conflict may also lead to medical concerns including hypertension, heart disease, and infectious diseases (Allen, 2014). Thus, mediators may invite parents to consider parenting plans that reduce levels of conflict, particularly where there has been a history of high conflict. Consider an agreement where the child primarily resides with mom and has “liberal access and time with dad.” If parents can collaborate eas- ily, this open- ended, flexible form of time- sharing can work well. However, it may be too vague for parents who continue to have high levels of distrust, anger, and conflict. They may benefit from a more detailed, fixed plan, specifying the days and times that each parent will spend with the child. For some families, it may be helpful to have a plan that details exactly where, when, and how the child will go from one parent to the other, providing parents with clear expectations and reducing the risk of further conflict (for detailed sample plans, see Arizona Supreme Court, 2009).

Research suggests that meaningful involvement of both parents with a child contrib- utes to the child’s well- being following divorce (Allen, 2014). Having the support of two parents has a number of potential advantages: The child is able to maintain the social and emotional bonds with each parent (fostering positive attachment and trust); both parents share in responsibilities and role modeling for the child; if one parent dies or is incapaci- tated, the other parent is available to provide continuity of care; and the nonresident spouse

8 For further information on the psychosocial processes of divorce and relationship dissolution, see Emery (2011) or Fine and Harvey (2005).

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may be more likely to comply with child support payments. If parents are able to coparent in a cohesive manner, then it is also helpful for both parents to live close to one another (Viry, 2014). Physical proximity permits the child to travel more easily between parents, while continuing to maintain relationships with peers, neighbors, school, and after- school activities.

Given the value of having both parents involved in the child’s life, some family law pro- fessionals and social scientists favor joint legal and physical custody, with both parents shar- ing decision making responsibility and with the child spending generous, meaningful time with both parents (Allen, 2014). Mediators need to remain neutral on the issues of joint custody and time- sharing arrangements, allowing the clients to decide what is best for their child. As noted earlier, the best interests of the child depends on the particular circum- stances of the family and child. If there is a high level of interparent conflict, if there is a pattern of domestic violence (Brinig et al., 2014), if one parent has a significant mental ill- ness (Deutch & Clyman, 2016), or if the child has difficulty with transitions, then it might be in the child’s best interests to live primarily with one parent and to have that parent be responsible for major parenting decisions (Allen, 2014; McIntosh, Pruett, & Kelly, 2014; Vanassche, Sodermans, Matthijs, & Swicegood, 2013).

Mediators can help parents consider their child’s developmental needs when determin- ing parenting plans. The period from birth to 3 years old is particularly important in terms of children developing positive attachment, parent– child bonds that affect children’s abil- ity to develop relationships throughout their lifetime (L. Parkinson, 2011). To promote attachment, young children need regular, frequent time with the relevant caregiver(s). Children also need to feel safe with each parent, free from stress and interparent conflict. Attachment can be supported by having regular routines for meals, sleep, play, and other activities (McIntosh et al., 2014). Parents need to allow children to explore and develop independence, as well as being present to nurture, support, and comfort the children as needed.

Regardless of how decision making and primary residence are decided, mediators could have the parents consider the following guidelines in support of the child’s best interests:

• Both parents will speak respectfully of on another in the presence of the child. • Both parents will support the child’s connections with family, friends, and school. • Both parents will work through conflicts privately, ensuring the child is not caught in the

middle of the conflict.

Rather than dictate such terms to the parents, mediators may present questions or pos- sible language, empowering them to develop language and arrangements that meet their child’s needs.

High- Conflict Divorces and Alienated Children High- conflict divorces are marked by distrust, anger, resentment, unreasonableness, and vengefulness (O. Cohen & Levite, 2012; Eddy, 2014c). Whereas most divorcing couples adapt reasonably well within 2 or 3 years following separation, high- conflict couples con- tinue to engage in problematic behaviors and interactions well beyond this time frame; in fact, the conflict may intensify over time. Although high- conflict divorces may comprise about 8 to 12 percent of cases filed in family court, they consume an inordinate amount of the court’s time and resources. (Fieldstone & Coates, 2014). High- conflict couples can be very litigious, spending hundreds of thousands of dollars on legal fees, custody evaluations, and court- related expenses. Even after the court has made its “final” decision, parents may continue to wage war and relitigate issues. Parents may fight over seemingly trivial issues,

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such as small amounts of time with the child or slight changes in the other person’s income (Fieldstone & Coates, 2014). In high- conflict divorces, one or both parents may have a significant personality disorder, for instance, borderline or narcissistic personality disor- der (Eddy, 2014c). People with such disorders can be very insecure, sensitive to criticism, controlling, and manipulative. They tend to have all or nothing thinking. They often have difficulty managing their emotions. They may make false allegations of spousal assault or child abuse. They may act in ways that are harmful to the child, just to punish or spite their former spouse. Given such behaviors and dynamics, it may be very challenging for media- tors to remain nonjudgmental and unbiased— particularly when one parent’s behavior and demeanor seems particularly offensive. Although the mediator may feel sorry for one spouse or sad for the child, the mediator needs to focus on helping the entire family system without taking sides.

Understanding the nature of high- conflict divorces and personality disorders can pro- vide mediators insight into strategies that may be helpful for high- conflict clients and their children. It may be unrealistic to expect high- conflict clients to suddenly become empathic, forgiving, and collaborative. Although perfect solutions may not be possible, mediators can help parents reduce conflict and potential harm to the child. When clients are stuck in defensive thinking and preoccupied with the other’s misdeeds, mediators may need to be relatively directive while also remaining attentive, empathic, supportive, and nonthreaten- ing. Rather than allowing clients to berate and brand each other with allegations, mediators can provide a structure that promotes calm, reasoned discussion about the future. When one client responds to an allegation in a defensive manner, the mediator might say, “You don’t need to defend yourself. You’re fine.” If a client keeps rehashing the past, the mediator could suggest, “Mediation doesn’t help us correct what has happened. Let’s focus on your proposals for what to do now.” When a client blames the mediator for lack of progress in mediation, the mediator could respond, “Yes, there could be more progress. What can you do to help everyone move forward on the issues?” (Eddy, 2014c). If one parent threatens to move across the country to spite the other, the mediator could empathize, “It sounds like you’re very angry. How can we try to put all that energy into doing what is best for your son?” It is crucial for mediators to remain centered, mindful of their reactions to the clients’ emotions and behaviors.

Although coparenting with a high level of cooperation may be ideal for some children (Molgora et al., 2014), shared parenting plans may be counterproductive in high- conflict situations (McIntosh et al., 2014). As an alternative, mediators could offer a parallel parent- ing approach in which each parent has specific expectations and responsibilities, completely independent of the other parent’s expectations and responsibilities (Arizona Supreme Court, 2009). For instance, one parent could be responsible for arranging summer camp, while the other is responsible for taking care of medical and dental appointments. Rather than one parent picking up the child from the other, parents may pick up the child from school, day- care, after- school activities, or other neutral locations. Parallel parenting helps clients disengage, as they do not need to consult with each other, minimizing the need for communication or joint action. It also minimizes exposure of children to inter- parent conflict. Parents may agree to communicate only through emails or text messages, unless there is a true emergency situation requiring face- to- face or voice communication. Parallel parenting plans are highly structured and detailed (C. Jones, Chappel, & Shaffer, 2014). Compliance with such plans may be monitored by a parenting coordinator, a help- ing professional whose job is to help parents follow a court order or separation agreement (Coates, 2015).

Child alienation arises when one parent speaks poorly of the other parent and acts in manner that discourages the child from spending time with the other parent

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(von Boch- Galhau, 2013). The alienating parent encourages the child to believe that the other parent is mean, neglectful, abusive, alcoholic, immoral, dangerous, or otherwise rep- rehensible, even though these criticisms are not true and are not based on the child’s actual experience of the other parent. In situations where the child’s fear, anger, or rejection of a parent is caused by actual experiences of abuse or other negative interactions, the child is considered “estranged” rather than “alienated” (Olesen & Drodz, 2008). Allegations of child maltreatment or abuse must be taken seriously; however, some clients may initiate false allegations to make life more difficult for the other parent. To ensure proper assess- ment of alienation versus estrangement, therapists and forensic mental health profes- sionals may need to assess the cause of a child’s anger or rejection of a parent. A useful tool for assessing alienation is the Alienation Child Custody Questionnaire (Olesen & Drodz, 2008).

An alienated child may reject all contact with the other parent; alternatively, the child may continue to spend time with the other parent, but experience high levels of anxiety. Given the negative impact of alienating behaviors, they could be viewed as a form of emo- tional abuse requiring child protection interventions (Lowenstein, 2011).

Alienating parents may or may not be aware that they are harming their child’s relation- ship with the other parent. Alienating parents may convey themselves as innocent victims who need the unwavering support of the child. The alienating parent is often the resident parent, who has more time with the child and may want to limit access to the other parent. Alienating behaviors may include making it difficult for the nonresident parent to spend time with the child, for instance, scheduling out- of- town travel on significant dates such as the child’s or nonresident parent’s birthdays. Although some legal and mental health profes- sionals believe that “parent alienation syndrome” should be recognized as a distinct mental disorder (von Boch- Galhau, 2013), it has not been recognized by the American Psychiatric Association (2014) and it remains controversial (Viljoen & van Rensburg, 2014). Whether or not it is a diagnosable syndrome, mediators should be aware of alienating behaviors and their negative psychological effects on children (Lowenstein, 2009). Children see them- selves as the product of both parents; when a parent derides the other parent, the child’s self- esteem is eroded. Mediators could help parents gain insight into the effects of alienating behaviors on their child (“How do you think your daughter feels when you call her mother a depraved whore?”). Although alienating behaviors can turn a child against the other par- ent, they can also make the child feel poorly about the alienating parent, as well as the child herself. Some children cope with alienating behaviors by supporting each parent when in the presence of that parent. Thus, a child might tell her mother that her father is careless and self- centered, as that is what her mother wants to hear; at the same time, the child might tell her father that her mother is an emotional wreck because that is what her father wants to hear.

When one parent makes allegations of child abuse or other forms of maltreatment, mediators do not need to assess whether these allegations are founded. The mediator’s role is NOT to assess child protection issues. Rather, if a mediator has a reasonable suspicion of child abuse or neglect, the mediator is mandated by child protection laws to report those suspicions to child protection authorities. Unfortunately, reporting a child protection issue may lead to concerns about the mediator’s neutrality, possibly leading to disengagement by one or both parents. To avoid this problem, mediators could ask the parent raising child protection concerns to make the report to child protection authorities. If the initial allega- tion is not a true child protection concern, the parent may recant the allegation and refuse to make the report. If the alleging parent does not agree to call protective services and the mediator believes she has a legal duty to report, the mediator may inform the child protec- tion agency that one parent raised these allegations, and not make any comments about the

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reasonableness of the suspicions. In this manner, the mediator fulfills a legal duty to report, but avoids losing neutrality since the mediator is not assessing the allegation.

If the parent or mediator does make a report, mediation could be suspended until the child protection agency has completed its assessment. If the allegations are unfounded, then mediation can resume without involvement of the child protection system. If allegations are founded, then the mediator and clients will need to determine whether it is appropriate to proceed with family mediation. In some situations, the immediate need for child protec- tion intervention takes precedence over mediating separation and divorce issues between the parents. Also, in some high- conflict situations, parents are so invested in the fight that they prefer ligation and adversarial processes to mediation; they perceive no incentive in resolving their conflicts in an amicable manner (Howieson, 2011).

Community Supports, Resources, and Supplemental Services Mediators should be aware of supports and resources that may be helpful for clients going through divorce. To promote client empowerment and self- determination, mediators should provide information or access to information, rather than giving specific recom- mendations. Thus, if a client wants legal advice but does not know where to start, the media- tor could provide the client with information about a lawyer referral service, or perhaps with a listing of lawyers who specialize in family law and collaborative law. If a client were interested in therapy, the mediator could provide the names of four therapists and invite the client to speak with each of them before deciding which to engage. Other local services that mediators should know include

• evidence- based parenting education, family transition, or coparenting intervention pro- grams (individual counseling, couple counseling, facilitated groups, self- help groups, online programs) (Prescott, 2014; Pruett et al., 2013);

• parenting coordinators (e.g., Coates, 2015; http:// www.parentingcoordinationcentral. com);

• parenting coaches or consultants (Fieldstone & Coates, 2014); • custody and parenting plan evaluators (Lund, 2015); • supervised visitation and parent reconnection programs (Fieldstone & Coates, 2014); • crisis hotlines for domestic violence, homicidal ideation, and suicidal ideation; • child protection services (for abuse and neglect); • child counseling and therapy; • recreational programs; • child support enforcement programs; • guardian ad litem or child advocacy programs; • legal aid (for clients who need assistance with legal fees); • business and property appraisers; • family law arbitrators (Ferguson, 2013); and • tax and financial advisors.

Family mediators may also provide clients with information about books, pamphlets, and online resources for parents and children (e.g., click on resources for families at http:// www.afccnet.org). These resources may include stories, guidelines, and suggestions, as well as information about parenting plans. Online and computer- based applications include digital calendars to facilitate time- sharing, expense calculators and logs, child support cal- culators, and message boards to facilitate interparent communication. Fee- based programs, such as Our Family Wizard (https:// www.ourfamilywizard.com), provide a range of online services to support families through separation and divorce. Mediators can help families

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determine which, if any, online and electronic services would be helpful for their particular circumstances. Some clients might find that electronic communication helps them avoid miscommunication and ensure that the tone of their communication is respectful; others may find that electronic communication exacerbates their conflict.

In addition to professional resources, mediators should be aware of nonprofessional supports that may be available. Extended family and friends may be helpful in a variety of ways: providing parents with alternate childcare and respite, providing moral support and concern, and helping clients move on with their lives after separation. Treating clients as experts in their own lives, mediators can explore a broad range of possible resources and support systems with clients, allowing them to make decisions about whether and how to access these supports.

Cultural Diversity Issues

Culture, ethnicity, race, religion, sexual orientation, gender identity and expression, disabil- ity, socioeconomic status, and other aspects of cultural diversity affect the way that families experience separation and divorce. Accordingly, mediators should be aware and responsive to diversity issues. This section provides examples of diversity issues to illustrate a range of situations in which mediators need to be attentive to client diversity. In practice, media- tors may need the assistance of cultural interpreters, diversity trainings, or culture- specific readings to help them navigate diversity issues with a particular client system (Barsky et al., 1996).

According to Catholic tradition, marriage is forever and divorce is not permitted. A Catholic couple might consider separation without plans for divorce; alternatively, they might seek annulment of their marriage. A mediator working with such a family could inquire about their plans regarding divorce. Rather than assuming they would never con- sider divorce, the mediator could ask about their plans and how they fit with their reli- gious beliefs and feelings associated with these beliefs. Simply because the clients identify as Catholic does not necessarily mean that they are not considering divorce. If the clients would like to have religious guidance, the mediator could invite their priest into the media- tion process (with both clients’ permission).

While family mediation often involves the mother and father, mediators should be open to involvement of other family members in light of the diversity of family structures and dynamics. In some cultures, children are often raised by grandparents or other extended family members (L. Parkinson, 2011). Even when children are raised primarily by the par- ents, grandparents or other elders may have a say in major decisions for the children or oth- erwise share in parental responsibilities. According to some cultural norms, women defer to their husbands, making it difficult for them to be assertive in family mediation; female clients may wish to have a brother or other male representative participate in mediation in order to ensure that the process is fair (Barsky et al., 1996). Rather than assuming what is best for clients from a particular culture, mediators should explore cultural dynamics and help the clients determine how mediation should be structured to meet their unique needs.

Gender issues may arise in relation to how men and women are socialized to deal with conflict. Women may be more amenable to discussing emotions, whereas men are social- ized to focus on task- related problems to be solved (L. Parkinson, 2011). During media- tion, men may state their position and find logical reasons to support it. In contrast, women may respond based on interpersonal obligations and the importance of maintaining good relationships (Poitras & Raines, 2013). To bridge such differences, mediators could meet separately with each party. For instance, if one party needs time and space for emotional expression, and other party wants to be task focused and finds discussing feelings to be a

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waste of time, the mediator could meet individually to start with each client’s preferred way of dealing with conflict. The mediator can then help each party explore alternate ways of dealing with the conflict. For instance, if the father initially avoids talking about emotions, the mediator could help him understand how expression of emotions may be helpful to CR process.

In families where women are the primary caregivers and nurturers, they may be expected to continue to this role after separation. Although families may decide to continue their pre- separation division of responsibilities, mediators can help them explore whether a different sharing may be in the child’s best interests.

When working with same- sex couples, mediators should be attuned to the unique chal- lenges faced by gay and lesbian parents (Barsky, 2016; Moscatti, 2015). For instance, one parent may be in the closet (very discreet about her sexuality), whereas the other is out. Alternatively, both clients may lack support of family members who reject them because of religious beliefs about their sexuality. Same- sex couples may also face legal impediments, for instance, laws that favor the biological parent’s rights over the other parent’s rights (Murphy & Rubinson, 2009). Once again, rather than making assumptions that these con- cerns apply to all same- sex couples, mediators need to assess the dynamics and issues for each client situation.

Among African American families, the rate of fathers who do not participate in their children’s upbringing is significantly higher than for many other groups (Gaskin- Butler et al., 2015). Among couples who have never married (regardless of race or ethnicity), there are also higher rates of poverty, higher rates of nonresident fathers who are not involved with their children’s lives, and higher rates of nonresident fathers do not pay child support (Maldonado, 2014; Pearson, 2015). Whereas mediation is often looked upon as a method of helping couples separate, mediation could be used as a method of engaging fathers in their children’s lives (Gaskin- Butler et al., 2015). In situations where the parents never lived together and the father had little involvement with the children, clients may use mediation to promote coparenting and ensure that fathers do not drift away from their children’s lives. If a father does not know how to feed, bathe, or diaper a baby, the parenting plan could include plans for how the father will learn such skills (e.g., with help from the mother, from a counseling program, or from grandparents). Mediators could also refer clients to psycho- educational programs designed to improve coparenting and the involvement of fathers in their children’s lives (Pearson, 2015).9 Mediators can help clients explore the potential ben- efits of greater involvement by the father: to share in the emotional and financial support of the children, to provide the mother with respite in caring for the children, to provide a positive male role model, or to allow the mother time for employment outside the home. Ultimately, however, mediators should respect family decisions for the father to have lim- ited or no involvement with the children. After all, mediators view clients as experts in their own lives.

In blended families, parents may have different expectations about who is responsible for the emotional and financial support of stepchildren following separation. For instance, a mother may want to continue a relationship with her biological children, but not with her stepchildren. Mediators should avoid imposing opinions on the families, includ- ing whether they think stepparents are morally responsible for the care of their stepchil- dren. However, mediators could help parents explore the impacts of their choices on the

9 Although Pearson (2015) and other researchers note the positive potential impact of greater father involve- ment, the consequences for children may depend on the nature of the father’s involvement (particularly in situations with family violence).

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children, including their children’s potential interests in maintaining relationships with their stepsiblings. Mediators may also refer clients to their attorneys for advice on whether they have legal rights and obligations (e.g., time- sharing, financial support) regarding their stepchildren.

Socioeconomic issues also play a big role in post- separation planning. For parents who have the means to support their children through college, there may be an expectation that they do so. For parents without such means, child support may terminate when the children reach the age of majority. For residential parents who are receiving welfare, there may be disincentives from seeking child support from the nonresidential parent. Residential par- ents could lose welfare payments, Medicaid, or other entitlements; even if they are entitled to child support, they may have more difficulty collecting such support, particularly if the nonresidential parent does not have consistent employment or if the residential parent has concerns about domestic violence (i.e., the support money is not worth the risk of further violence). If the nonresidential parent is totally absent, the residential parent and children may have access to other benefits (e.g., scholarships for college education based on financial need). One or both parents may be embarrassed to discuss such issues, so mediators need to be sensitive to these issues and create a safe environment for parents to disclose them.

INDIVIDUAL SESSIONS: PREMEDIATION AND CAUCUSING

One of the key differences between TpM and other models is the emphasis TpM places on meeting individually with clients, in premediation as well as in caucuses during the middle phases of the mediation process. Nontherapeutic mediators tend to limit or avoid individ- ual meetings with clients, preferring to meet jointly and have clients work through their concerns together. Therapeutic mediators use individual meetings to assess the conflict situation, including individual factors that may be impeding effective management of the conflict. Individual sessions also provide mediators with an opportunity to provide each client with individualized help, using therapeutic techniques that may not be appropriate during joint sessions. One of the primary advantages of meeting individually is that clients may be more open to discussing certain issues without the other party present. A mediator may not learn about domestic violence or power issues, for instance, unless the mediator has an opportunity to meet privately with each client. The following sections explore how mediators may use individual meetings to assess the family’s situation, to prepare clients for constructive participation in mediation, to help clients deal with power and violence issues, and to work with attorneys.

Assessment

During the premediation phase, therapeutic mediators meet individually with each parent10 to gather information, assess the dynamics of their family and relationships, and formulate plans for proceeding with the next stages of the mediation process (Wall & Spira, 2012). Family mediators gather information to assess

• the ability of each party to communicate with each other; • the intensity of the conflict and how the parties seek to resolve differences; • the nature and extent of any violence between the parties; • the extent to which the parties trust or distrust one another;

10 Meetings involving children are discussed toward the end of this chapter.

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• the degree to which each party exhibits flexibility; • the patterns of interaction between the parties and relevant systems (including social

supports, sources of stress, and intergenerational patterns of dealing with conflict); • the level of dependence or attachment between the parties in their relationship; • whether the parties want to continue or terminate their former relationship (wishes and

motivations); • the extent to which the parties can focus on the future; • the overall cognitive functioning of the parties (including how this may be affected by

memory impairments, substance abuse, mental illness, or personality disorders); • the ability of each party to perform social functions relevant to the dispute (e.g., parent-

ing, work); • the financial, social, and emotional resources of each party; • cultural diversity issues that are relevant to the issues in conflict (including beliefs, values,

norms, and myths); • critical incidents that led the parties to their current situation; • what motivated their request for mediation; • whether and how they are using assistance from attorneys; and • potential conflicts with third parties that may impinge on the mediation process

(Holtzworth- Munroe, Beck, & Applegate, 2010; Irving & Benjamin, 2002/ 2012; Poitras & Raines, 2013).

To illustrate the assessment process in practice, consider the following scenario:

Patricia and Petr are the parents of 6- year- old Ceanna. Patricia has filed for divorce even though they are still living in the same house. Petr has moved into the basement. Upon the advice of his attorney, he refuses to leave the house. Ceanna has become very moody. She was suspended from school after initiating a fight with another child. The court referred Petr and Patricia to Munroe for mediation to deal with parenting issues and possession of the marital home.

Munroe decides to meet individually with each parent, giving him an opportunity to explain mediation and assess whether mediation is appropriate for Petr and Patricia. Having individual sessions provides the parents with an opportunity to vent their feelings and tell their stories without escalating conflict with the other party.11 By allowing parents to recognize, express, validate, and experience their feelings, mediators can help them gain control (Emery, 2011). The premediation meetings also give Munroe an opportunity to offer individualized support. Munroe gives each parent considerable leeway to talk about the history of their relationship before focusing them on the present context of the conflict. He uses active listening skills to confirm that he is hearing their perspectives. He is careful to avoid responses indicating that he agrees or sides with either one.

Munroe discovers that both parents are articulate, assertive, and care deeply about Ceanna. Munroe can build upon these strengths during mediation. Petr and Patricia are also distrustful and frustrated with each other, giving rise to a moderately high level of conflict. Patricia says she asked Petr to leave when she discovered he was having an affair.

11 The downside of allowing the parties to vent in individual sessions is that they do not hear one another’s stories. The mediator may learn information about one party that the mediator believes should be shared with the other. Accordingly, the mediator needs to let both parties know from the outset that the mediator will encourage them to share information with one another.

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She also says Petr has a problem with alcohol and that he should not be left alone with Ceanna. Petr denies having an affair and says Patricia is fabricating the story about alcohol- ism because she is enraged about the “supposed affair.” Upon gathering this information, Munroe formulates the following tentative assessments:

• Both parents are competent to mediate. Although Patricia claims Petr has an alcohol problem, there were no signs of alcohol use when Munroe met with him. He was lucid and had no problems with memory or communication. Munroe did not assess whether he had an alcohol problem, as this is not a mediator’s function.

• Follow- up premediation sessions with each parent will be helpful. Although Patricia wants to divorce, Petr says he thinks the marriage can be saved. Follow- up sessions can help determine whether reconciliation is possible, and if not, then the mediator can help Petr deal with his ambivalence about ending the relationship and accept the reality of the separation. Patricia’s comments and behaviors reflect anger and hurt regarding her belief that Petr was having an affair. The follow- up session with her can be used to help her work through these issues.

• Munroe uses the Conflict Tactics Scale (Straus, Hamby, Boney- McCoy, & Sugarman, 1996) to assess for violence. Both clients disclose yelling. They report no history of physical violence, emotional manipulation, or financial control. Munroe decides that it is appropriate to mediate in joint sessions with Petr and Patricia. Given the high level of conflict and the tension of living separately within the same house, he notes that it is important to continue monitoring for safety issues.

• Initially, Patricia’s comment that Petr should not be alone with Ceanna raises the pos- sibility of a child protection issue. When Munroe uses clarification questions to deter- mine what Patricia meant, she does not indicate significant concerns regarding abuse or neglect. Patricia may have needed to vent her anger, as the allegations dissipated when her fury subsided.

• Munroe determines that although the parents care about Ceanna, they are not fully aware of how their conflict might be affecting her. Premediation may be useful in helping both parents explore how their conflict may be affecting Ceanna’s behavior at home and at school.

Throughout the assessment, Munroe focuses on each parent’s ability to mediate and how he may be able to help them mediate more effectively. He does not take sides. He does not evaluate what is in Ceanna’s best interests, including where Ceanna should live, how parent- ing time should be divided, or what types of arrangements Petr and Patricia should have around key parenting decisions.

Munroe is aware of a potential power imbalance given that Petr still believes there is a possibility of reconciliation. Petr says he wants to pacify Patricia, hoping he can mend their relationship by acceding to her wishes in mediation. Patricia is adamant that the separation is permanent; she is very assertive of her rights and shows no inclination to accommodate any of Petr’s concerns. Petr also comes from a culture that deals with conflict in a less direct manner than Patricia’s. Premediation gives Munroe an opportunity to rebalance power between the parties, so they can negotiate fairly and fully. For example, Munroe can offer to teach Petr assertiveness skills that are consistent with his cultural values. He can also coach Patricia on how to assert her needs without becoming aggressive. By assessing the clients’ dynamics, personalities, and motivations, the mediator is able to formulate an assessment and plan about how best to proceed with the mediation process (Turkat, 2012).

This section has highlighted a number of potential challenges to the mediation pro- cess, for instance, strong emotions, ambivalence about separating, distrust between clients,

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and strongly entrenched positions (Poitras & Raines, 2013). Mediators should also assess potential strengths. By helping clients identify a positive period in their relationship, media- tors can reinforce these strengths and foster hope. “It sounds like both of you struggled financially during the first few years of marriage; but you worked together and you pro- vided a good home for Ceanna. This shows you have the potential to work together, even in tough times, for the good of your daughter.” Alternatively, Munroe might commend clients for traits demonstrated in mediation. “Patricia, you’ve shown a lot of perseverance. Your willingness work through difficult issues bodes well for mediation.” Given concerns about neutrality, it is often easier to commend parties individually rather than in joint meetings. Other potential strengths to reinforce include the presence of support systems, common values, optimism, humor, creativity, honesty, openness, perseverance, respectful communi- cation, and other factors that can help them bridge differences and enhance their relation- ship moving forward (Billikopf, 2014; Moore, 2014).

Preparing Clients for Mediation

For each challenge identified in the forgoing assessment, mediators can develop plans to prepare clients individually, helping them mediate more effectively when brought together. The following paragraphs illustrate strategies that mediators can use to help clients work through difficult emotions, to learn how to focus on the child rather than themselves, to extricate themselves from entrenched positions, and to enhance their mediation skills.

In terms of emotions, it is often the noninitiator of the separation who feels more sad, hurt, depressed, or hostile (Howieson, 2011). When Patricia initiated the separation, Petr’s first reaction was denial. “This isn’t really happening. We’ll work it out.” He is not ready to let go of his love for Patricia, or even entertain the thought that their marriage may be over. Munroe can help Petr process his feelings by demonstrating empathy. “Sounds like you were shocked that Patricia accused you of infidelity and asked you to move out.” By meeting individually, Munroe is able to show concern for Petr’s situation without triggering a defen- sive reaction from Patricia. Munroe maintains equidistance by providing similar empathy for Patricia’s situation when he meets with her. Mediators should be conscious of the use of time. As Munroe helps Petr work through his denial, he may go through other challenging reactions, such as anger, sadness, and grief (Emery, 2011). When people have experienced traumatic or turbulent events, they may benefit from time and space to allow for emotional healing (Mayer 2009). Although some issues need to be determined relatively quickly, time between sessions may allow for the parties to deal with despair and other emotions trig- gered by divorce (L. Parkinson, 2011). Mediators can also help parties reframe their emo- tions. When Patricia discusses how irate she was when she discovered Petr was having an affair, Munroe helps her see that, underneath the anger, she is feeling hurt. In a joint session, Patricia may not disclose how hurt she felt, not wanting to look weak to Petr. Discussing such emotions during caucus helps Patricia save face.

When parents feel angry or hurt, they often focus on their own wishes and interests. “Petr ruined our marriage and embarrassed me to all our friends. He should be punished.” Given the need to focus on the child’s best interests, individual sessions can be used to reorient parents from their own interests to the child’s. To facilitate insight, Munroe might ask, “How do you think your anger might get in the way of doing what is right for your daughter?” Although the mediator shows empathy and concern for Petr’s situation, he also raises Petr’s awareness of self- defeating behaviors. “Would you mind if I shared some of my observations about your interactions with Patricia? (pause for response) There are times when you stare at Patricia and she starts to raise her voice. I’m wondering if your intense eye contact is making her feel defensive.” By raising awareness of how anger affects his

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nonverbal behavior, Petr can modify his eye contact and foster more positive interactions.12 Note how the mediator shares an observation with the client. The mediator does not force opinions on the client, but asks for permission to share a hunch with him.

Alternatively, Munroe might focus Patricia on Ceanna’s long- term well- being: “Ten years from now, what would you like Ceanna to say about how you handled the separation process and its impact on her?” Munroe could also discuss how the purpose of mediation is not to ascribe blame or impose punishment, but to help them rebuild a better life mov- ing forward— for the parents and the child: “I understand you feel hurt. You feel like Petr has violated your trust. What is more important than your hurt, however, may be what you do with that hurt.” Mediators can give clients permission to let go of feelings that may be impeding their ability to focus on their child’s best interests, helping them express their pain and encouraging them to take responsibility for how they want to manage the energy from their emotions.

When clients are entrenched in certain positions, there appears to be no room for cre- ative win- win conflict resolution, or even for compromise. Both clients insist they are right and do not want to back down (Poitras & Raines, 2013). Mediators can teach clients the value of interest- based, collaborative negotiations, including how they benefit the parents and the child. During individual meetings, mediators can also use reality testing with each client. “Petr, you said that you plan to remain in the marital home permanently. What do you think would happen if Patricia takes this issue to court for a judge to decide?” Munroe could refer Petr to speak with his attorney about possible and probable outcomes of going to court, including the costs that each party will bear. Munroe could explain the nature of cognitive bias:

Would you like to learn about cognitive bias? It might help you let go of some of your frustra- tions. [Pause for response] One of the reasons that people become locked in conflict is because of cognitive bias. Cognitive bias is the natural tendency for people to look at facts and evidence that support their own point of view. People tend to dismiss facts that might support the other person’s perspective. I catch myself doing this, so I have to remind myself to consider the situa- tion from multiple perspectives.

Explaining cognitive bias could open up a rational discussion of both pros and cons of living in the same house.

Another way to facilitate insight into the other parent’s perspective is to apply the Golden Rule, “Do unto others as you would have them do unto you.” If Patricia insists that Petr is not allowed to be with any girlfriends in the presence of Ceanna, the mediator could help her consider what Petr might demand in response. “So if you want to limit who Petr can be with when he spends time with Ceanna, would you also be prepared to let Petr limit who you can be with?” If this technique works, Patricia gains empathy for Petr’s potential reaction, allowing her to rethink what she wants to ask him in the next joint session. This type of question entails some risk, as it could put Patricia on the defensive. Using it in the confines of an individual meeting, however, allows Patricia to process the issues without having to face Petr.

Mediators can facilitate insight into how conflict may have taken over their lives (Poitras & Raines, 2013). Patricia accuses Petr of being neglectful. Petr responds by saying that

12 One of my clients was completely unaware that she was making faces and mimicking her former husband during joint sessions. During an individual session, we agreed that I would raise my writing pad to my chest to let her know that she was making faces, giving her an opportunity to correct her behavior.

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Patricia is unreasonable. Each time one parent labels or lashes out at the other, the negative cycle of conflict continues. During individual meetings, mediators can ask parents to take a step back to consider their current cycle of conflict. “Patricia, what are some of the effects of the current conflicts between you and Petr? How have they affected you in relation to your sleep, your work, and your ability to care for Ceanna?” After highlighting the negative effects of conflict, mediators can help parents strategize how to start working toward a more positive relationship. “Petr, what are some things that Ceanna loves about her mother? How do you think Patricia would respond if you told her that you also appreciate these qualities?” This strategy reminds Petr that Patricia has many positive attributes. Rather than focusing on ill feelings toward Patricia, identifying positives gives Petr permission to have positive feelings about her. It also helps him find words to affirm Patricia and build bridges with her.

Individual meetings can be used to coach clients on how to use particular negotiation skills (Billikopf, 2014). If Petr were unsure how to respond to Patricia’s anger, for instance, Munroe could teach him how to acknowledge the anger without agreeing or disagreeing with Patricia’s stated cause for the anger. In other words, he can acknowledge Patricia’s anger at him without confessing infidelity. He could also simply listen without respond- ing verbally, just remaining present. Munroe and Petr could role- play possible responses, so Petr can develop self- awareness and verbal skills to respond more effectively. If Patricia has trouble with brainstorming, Munroe could practice brainstorming with her, including options that meet Petr’s interests. Mediators can also teach clients the value of concilia- tory gestures. When parents reach impasse over how to proceed, a positive gesture by one parent can lead to reciprocal responses from the other. During negotiations over timeshar- ing, Patricia suggests, “Why don’t you spend Thanksgiving with Ceanna. I know it’s a very important holiday for you and your parents.” Although Patricia is not assured that Petr will respond in kind, this gesture could mark a key turning point in negotiations. Taking such risks can lead to further collaboration and enhanced trust. Mediators may find it easier to encourage the more reasonable client to make compromises. Mediators should be cautious about asking more of one client than the other, ensuring the mediation process is fair to both clients.

Power and Safety Issues

Given the potential vulnerability of clients, mediators should use a standard screening pro- tocol to assess for power and safety concerns from the outset of mediation; they should continue screening throughout mediation (e.g., C. Beck, O’Hara, Anderson, & Benjamin, 2013; Cleak et al., 2014; Holtzworth- Munroe et al., 2010). Initial screening may include an in- person interview, as well as a written or online questionnaire. Some clients may feel safer disclosing sensitive information via one medium or the other (Bingham, Beldin, & Dendinger, 2014). During the first meeting, mediators should establish rapport, using empathy, honesty, and compassion to help the client feel comfortable. Mediators need to know how to ask questions about violence and control in a nonthreatening, concerned manner (Bingham et al., 2014).

If mediation is inappropriate because of concerns of severe power imbalances or vio- lence, it is preferable to identify these concerns as early as possible— both to safeguard cli- ents from harm and to avoid wasting their time. One of the challenges in assessing power and violence issues is that clients may be reluctant to share information about these con- cerns (Rivera, Zeoli, & Sullivan, 2012). A person who is experiencing violence or duress, for instance, may feel too embarrassed to discuss it. Alternatively, that person may be afraid that the perpetrator of the violence may retaliate if the violence is exposed, posing pos- sible threats to the survivor and to the children (Bingham et al., 2014). Survivors of abuse

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report a range of feelings that make it difficult to disclose abuse: paranoia, shame, confu- sion, denial, and anger. They may also wonder what will happen if they disclose abuse: Will the mediator be able to help them, will the mediator retraumatize them by delving into the abuse, or will they be forced to go to court rather than avail themselves of mediation (Bingham et al., 2014)?

Mediators are more likely surface violence issues if they have intimate partner abuse training, including a structured protocol for screening and skills for asking questions in a nonthreatening manner (Holtzworth- Munroe et al., 2010). Although some mediators begin mediation with a joint meeting, beginning with separate meetings may be preferable because clients experiencing violence are more likely to disclose violence if the other per- son is not present (Olson, 2013). Mediators need to know what resources are available and how to refer clients if they do surface significant abuse concerns (Bingham et al., 2014). In some situations, there may be urgent safety concerns requiring immediate precautions and safety plans. In other situations, the client may have already taken appropriate precautions and the risks of further violence may have been ameliorated (e.g., no abuse has occurred since separation and the client no longer feels intimidated).

A complicating factor in assessing safety and power issues is that there are many differ- ent forms of violence. In some instances, mediation is clearly inappropriate because media- tors cannot ensure safety and fairness. In other situations, mediation could be offered using a modified process and safeguards (Olson, 2013). Possible modifications include having mediation sessions with each parent in separate locations, escorting clients to and from their cars, having parties attend mediation with an attorney or other support person, and establishing firm ground rules at the outset, including which issues are nonnegotiable. When there is a history of intimate partner abuse, for instance, joint custody may be unac- ceptable to the extent that it increases risks of further violence and control (Brinig et al., 2014). Thus, mediation could focus on how the nonresident parent will be able to spend time with the child; issues such as the child’s primary residence and parental decision mak- ing will be off the negotiation table. Another possible precondition to mediation is that the person causing the abuse agrees to participate in a treatment program to help him address these issues. Other issues to be excluded from mediation include determining whether the abuse occurred, trying to reconcile the couple, assessing fault, or determining punishment for past abuse (Milne, as cited in Murphy & Rubinson, 2009). If these issues need to be determined, then they need to be determined in forums other than mediation.

One of the more commonly used typologies of intimate partner abuse comprises five categories:

• Coercive, controlling violence (CCV) arises when someone uses escalating levels of physi- cal and psychological force aimed at victim intimidation and control.

• Violent resistance arises when someone uses violence to self- protect against a partner using coercive violence.

• Situational couple violence arises when an unresolved disagreement spirals into a violent incident, but the violence is not part of a larger pattern of control.

• Separation- instigated violence first arises at the time of separation by someone with no his- tory of coercive violence.

• Mental health- driven violence arises when violence stems from schizophrenia or other severe mental health issues. (Allen, 2014)

Although mediators should attend to risks associated with any form of violence, CCV is the category most likely to preclude mediation. CCV is sometimes called intimate terror- ism, reflecting the fear, coercion, and control inherent in CCV (Olesen & Drodz, 2008).

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Given the pattern, intensity, and impact of CCV, it would be difficult if not impossible for a mediator to ensure safety and fairness, even with modifications to the mediation process. For instance, if the mediator uses shuttle mediation, with the clients never meeting, the per- petrator of abuse can continue to instill fear and control (Olson, 2013). The client who has experienced abuse may acquiesce to the perpetrator’s wishes to avoid the risk of retaliation (C. Beck et al., 2013). Further, the mediator might unwittingly expose the abuse survivor to further violence by encouraging her to be more assertive.

When a mediator assesses a history of violent resistance, situational couple violence, or separation- instigated resistance, mediation may be possible, depending on whether the parties can provide truly informed and voluntary consent. In these cases, the history of violence has been situational and there may be no pervasive dynamic of coercion and con- trol. When assessing violence, it is important to focus on the impact and meaning to the survivor (Olesen & Drodz, 2008). In some situations, a single incident of violence could be so terrifying to the survivor that she continues to live under the perpetrator’s coercion and control. In other situations, there could be several incidents of violence, but the sur- vivor has taken steps to ensure her physical and psychological safety, exculpating herself from fear. The mediator could explore the possibility of mediation with the parties, with particular emphasis on managing concerns about safety, fairness, and freedom from coer- cion. If the perpetrator takes responsibility for his behavior and the victim is able to negoti- ate without fear of retribution or control, then mediation may be possible (Ver Steegh, as cited in Murphy & Rubinson, 2009). Some people who have experienced situational abuse may prefer mediation because alternatives, such as court, do not provide better safeguards (Olson, 2013). In cases where there is mental health- driven violence, it may be necessary to ensure that the mental health condition is under control before initiating mediation (e.g., the person is receiving medication and other mental health treatment and monitoring; or if there is an addiction issue, the person has been able to achieve a significant period of sobri- ety). There is rigorous debate among researchers and helping professionals concerning the appropriateness of mediation— even with modifications— if there is any history of vio- lence (Semple, 2012). Some contend that mediators are incapable of redressing violence in a manner that ensures that mediation will be safe and fair (Rivera et al., 2012). Others con- tend that mediation’s de- emphasis on discussing fault discourages victims from asserting their rights and encourages victims to see themselves as part of the problem (Grillo, as cited in Murphy & Rubinson, 2009). I believe that the appropriateness of mediation depends on the nature and extent of violence, the motivations and wishes of the clients, and the skills and knowledge of the mediator to handle such situations.

When assessing for violence, it is helpful to ask about the full spectrum of potential violence. Some people equate violence with physical and sexual violence, perhaps mini- mizing the significance of verbal and psychological abuse: yelling, using insulting language, imposing financial control, making threats to children or pets, destroying property, isolat- ing, devaluing, belittling, and other controlling behaviors. Intimidation and abuse may also occur through social media and other electronic technology. Cyberbullying refers to the use of online technologies to harass, taunt, or humiliate. Cyberbullying may include co- opting the other person’s online identities and posting embarrassing or intimidating informa- tion or images. Cyberbullying can be particularly troubling because perpetrators can use it anonymously. They can also reach large audiences, including friends, family, employers, and the public. Cyberstalking includes the use of spyware, video surveillance, or other elec- tronic means to monitor and stalk the other person. Using an assessment tool designed to identify violence and control issues can help mediators assess a broad range of problematic behaviors, as well as the frequency and intensity of the violence (Holtzworth- Munroe et al., 2010; Straus et al., 1996).

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A nonthreatening way to assess for power and control issues is to ask each client how decisions have been made in the past. “During marriage, how were decisions about family finances made?” or “How did you decide where your daughter would go to school?” The mediator can further explore areas of possible concern. For instance, if one client intention- ally kept the other short of money, the mediator could ask additional questions to assess for financial control. Tools for assessing intimate partner violence include the Domestic Violence Evaluation (Drodz, 2007) and the Conflict Tactics Scale (Straus et al., 1996).

Mediators should note that abuse is not necessarily initiated by a man against a woman. Abuse can occur by a woman against a man, it can be reciprocal, or it can arise between couples of the same gender. Abuse also cuts across all socioeconomic, cultural, and reli- gious groups (Olson, 2013).

Power imbalances may arise in situations without violence or abuse. For instance, one client may be much more assertive than the other. Premediation can be used to help the more assertive client avoid using power in an exploitive manner, or to teach assertiveness skills to less assertive client. Similarly, if one client has more power because of greater infor- mation, that client could be asked to share information with the other client. Although one client may have the capacity to use power to persuade the other, mediators may ask questions to facilitate insight into downsides of using undue pressure (e.g., although the other client may acquiesce during mediation, the agreement might unravel when the parties leave mediation; an agreement made under pressure may not be in the child’s best inter- ests; and refraining from using power can foster better relationships as coparents). To the extent that the parties embrace collaborative, win- win negotiation, the negative potential of power imbalances can be minimized. In other words, the impact of power is lessened when mediators focus clients on open communication, gaining insights, and joint problem solving (Bollen, Verbeke, & Euwema, 2013). Additional means of power balancing include

• ensuring both clients have equal opportunity to speak; • asking questions (during caucus) to facilitate insight into sources of power that a client

may not have considered; • helping parties formulate “yesable” options (e.g., if a less powerful parent offers a win- win

option, the other parent may agree to it rather than pushing for a win- lose option); • helping parties address negotiation weaknesses (e.g., if one party is very disorganized, a

mediator could offer a referral to a counselor who can assist with this issue or a party who misunderstands legal issues could be referred to an attorney); and

• helping parties reassess their sources of power. The influence of power depends on per- ceptions. If one client is underestimating her power or overestimating the other’s power, then that gives greater influence to the other person (Moore, 2014).

Working with Attorneys

Meeting separately with attorneys at the outset of mediation serves a number of purposes. First, attorneys may be able to help mediators identify violence or other issues that the medi- ator needs to consider from the outset. If mediation is clearly inappropriate, the mediator does not need to meet with the parties, thus reducing risks of harm. If mediation might be appropriate, mediators can take appropriate precautions, for instance, first meeting with the client who may have been experiencing abuse. Other purposes for meeting with attorneys include explaining mediation and discussing the most constructive roles that the attorney can play in the mediation process. Some attorneys are very knowledgeable and support- ive of mediation; others are not. In either case, mediators can assess their knowledge and

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motivation regarding mediation, answering any questions or concerns. Some attorneys are concerned their clients will inadvertently forfeit their rights during mediation, compromis- ing on key issues. Mediators can review appropriate roles for attorneys, for instance, advis- ing their clients during or in between mediation sessions. Mediators can also discuss the value of clients speaking for themselves, rather than having mediators speaking for them. Mediators may validate other important roles for attorneys,

• explaining the value of mediation to clients, instilling confidence in the mediation process;

• helping clients prepare for mediation (e.g., preparing financial or other information to facilitate negotiations);

• helping clients identify options for solution, including ways to resolve impasses; • providing clients with advice about what might happen if the case goes to court, and

helping them reconsider unrealistic positions (Howieson, 2011); and • helping clients focus on the best interests of the children, rather than focusing on the past

or trying to hurt the other party.

Mediators can validate attorneys’ roles as strong advocates for their clients, while also not- ing the importance of collaboration in separation and divorce cases. Research suggests that clients are often more satisfied when attorneys focus on relationships rather than merely advocating for rights in an adversarial manner (Howieson, 2011). Although having a strong advocate may feel supportive, clients recognize that collaborative processes can result in greater fairness than adversarial ones. Mediation offers attorneys an opportunity to balance their advocacy role with a collaborative negotiation style designed to meet the best interests of the child, as well as the interests of both parents. Collaborative lawyering also provides clients with a greater say and sense of empowerment than the traditional adversarial model.

In situations where one or both clients have not hired attorneys represent them, mediators should explore their reasons. If clients do not see the value in hiring an attor- ney, the mediator could provide information about potential benefits (e.g., making sure clients understand their rights, guiding them through complex legal processes, advising clients how a judge would likely decide a case). If clients cannot afford legal fees, media- tors could provide information about less expensive services. For instance, some attorneys offer “unbundled services,” meaning that they will help with specific tasks such as drafting a separation agreement, but will allow clients to perform other tasks on their own (Greacen, 2014). Some jurisdictions offer free or subsidized legal information and services based on financial need (e.g., clinics staffed by law students). The ultimate decision about whether to hire an attorney should be left to the client, although the mediator should note in the agreement to mediate when a client chooses not to hire an attorney. Further, if one client has an attorney and the other client is self- represented (“pro se”), the mediator should con- sider how to manage possible power imbalances within the mediation process (e.g., asking an attorney to use plain language so the pro se client can understand what the attorney is saying).

THERAPEUTIC STRATEGIES AND SKILL S

Therapeutic mediators draw from a range of practice theories to inform their work, often using their training and experience as therapists to edify their practice as mediators. Practice theories can help mediators conceptualize psychosocial processes that may assist clients in dealing with emotional, cognitive, and behavioral issues that may be impeding effec- tive conflict resolution (including the ability to adapt to change). Although therapeutic

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mediators are not providing therapy, per se, they may use strategies and skills from various therapeutic processes within their mediation processes. The following sections illustrate how elements of family systems therapy, rational emotive behavior therapy, narrative ther- apy, and solution- focused therapy can be used within mediation. You may also incorporate strategies and skills from other therapeutic processes into your model of mediation. As you work through this section, consider how to draw the line between mediation and therapy. Note that mediation is designed to help people manage or resolve conflict. Accordingly, when a therapeutic mediator incorporates strategies or skills from therapeutic processes, they should be used with a view to helping the clients deal more effectively with the conflict.

Family Systems Strategies and Skills

Conceptualizing the family as a system recognizes that a family is not just the sum of indi- vidual family members. It is a unique entity with its own strengths, challenges, values, norms, and patterns of behavior (Eddy, 2014a). Family systems serve as a source of sup- port for the people within the family, offering family members love, nurturing, guidance, structure, and a sense of tradition. Within each family there are a myriad of roles, such as father, mother, son, daughter, and grandparent. Different families define roles and respon- sibilities within families in different manners (Nichols, 2013). According to traditional gender- based norms, fathers may assume the role of financial breadwinner and mothers may assume the role as caretaker for minor children. However, such roles may be shared, reversed, or assumed by other family members (e.g., grandparents or parentified children). Family systems are composed of subsystems such as the couple subsystem, the mother- child subsystem, and the sibling subsystem. Systems and subsystems are structured by boundaries, invisible lines of demarcation that both separate people and define how they are connected (Minuchin, 1992). Thus, during marriage, the boundary around a couple subsystem represents the love, support, closeness, and tension between them, as well as the degree of interactions with other family subsystems and systems outside the family unit. In general, the most functional family boundaries are ones that are clear and flexible (Wall & Spira, 2012). When families have unclear, rigid, or enmeshed boundaries, it is more diffi- cult for them to manage conflict and stress. When a couple separates, all family subsystems are disrupted. The roles, rules, boundaries, and relationships also change (Eddy, 2014a). A family system that was once in balance (homeostasis) may be thrown into turmoil as the family learns to adapt, cope with stress, and find a new equilibrium.

Therapeutic mediators help families renegotiate their roles, rules, boundaries, and rela- tionships (Emery, 2011), easing the transition and helping family members let go of family dynamics that are no longer helpful for the separated family system. Therapeutic media- tors also recognize that the nuclear family system operates within a broader social system, including extended family, friends, pets, employers, schools, and other systems. Thus, if grandparents or new partners are fueling the flames of the conflict, the mediator may need to bring them into the mediation process (L. Parkinson, 2011). Mediators may also help families access support to help them through transitions, for instance, a teacher who can aid a child or friends who can help clients implement their parenting plan. Simply hav- ing a dog present during mediation can foster more positive interactions between clients (Leaser, 2005).

The following discussion illustrates seven family systems strategies and skills that mediators may use to assist separating families: structural questions, strategic questions, circular questions, role- reversal questions, presuppositional questions, predicting the next step, and exception- oriented questions. Note that questions can include direct as well as implied questions. An implied question is made in the form of a statement that encourages

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the client to respond as if it were a question. “I wonder whether you have thought about the costs of litigation,” for instance, encourages clients to respond about the costs of going to court, even though the mediator did not directly ask them to respond.

Consider a same- gender couple, Nadine and Ellyn, who have been referred to Mindy to mediate a custody dispute over their 3- year- old son, Sparta.

During marriage, Nadine stayed home to care for Sparta. Ellyn worked long hours, including frequent travel in her job as a publicist. Because Nadine was Sparta’s primary caregiver during marriage, she resents having to share Sparta with Ellyn. She also resents the notion that she has to return to work outside the home. When Sparta was born, both parents agreed that it was in his best interests for one parent to stay home to raise him. Nadine does not think she should have to maintain financial responsibility for Ellyn and wants to be more involved in Sparta’s life.

Mindy recognizes that, despite the separation, Nadine wants to maintain roles that existed during marriage. In contrast, Ellyn wants to make significant changes. Using a systems perspective, Mindy can help them explore alternate ways in which they can share roles and responsibilities. Structural questions are designed to challenge existing family norms, boundaries, and rules— in other words, the structure of their relationship (Minuchin, 1992). By exploring the functions of norms, for instance, mediators can facilitate insights and help families consider new norms or preferred ways of functioning. “Nadine, please help me understand why it was important for you to stay at home with Sparta when he was an infant? [pause for response] What are some of the changes in the family since you first made that decision? [pause] In what ways could the old rules use some updating to reflect your family’s new reality after the separation?” Alternatively, mediators help can use struc- tural questions to help clients delineate new boundaries and establish a new equilibrium in the family. Assume Ellyn does not want Nadine to bring new partners into the family home, purportedly to protect Sparta from being exposed to undesirable characters. “Ellyn, when you lived with Nadine, the two of you agreed to a monogamous relationship. As a married couple, each of you had a say in how each other conducted themselves. Now that you are separated, what type of say, if any, should Nadine have over who you can date or see?” Mediators can help clients establish new boundaries and expectations by having them explore prior boundaries, including how they may not be desirable given the dissolution of the marriage. Note how clients could feel defensive in responding to strategic questions. Mediators should ask strategic questions in a gentle tone and manner, showing curiosity and concern rather than blame or condemnation. Although structural questions may influ- ence client expectations and beliefs (Tomm, 1988), mediators need to respect client self- determination and allow them to draw their own conclusions.

Strategic questions are designed to help families correct problems in their interactions (Tomm, 1988). If a client is communicating in an ineffective manner, for instance, the mediator can draw the person’s attention to this concern. “Nadine, are you aware that you have been interrupting Ellyn? W hen this happens outside mediation, what happens next?” Using a question rather than making a statement invites the client to think about an issue, rather than telling her what to do. Mediators can also use questions to help cli- ents reflect on problematic family patterns. “Have you noticed that each of you is saying what the other person should do rather than talking about what each of you could do to make things better for Sparta?” In this example, the mediator is able to identify issues in the relationship, rather than problems in one person’s behavior. It is easier for the media- tor to maintain neutrality by mutualizing the issue and focusing on the relationship. In situations when the mediator focuses on one person’s behavior, the mediator needs to be

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extra cautious about the tone of the question to avoid putting one client on the defensive. As with structural questions, strategic questions should be asked in a respectful, curious manner. The mediator may pose questions as a naïve observer, treating clients as experts in their own lives (Fong, 2015).

Circular questions are questions that invite clients to explore differences, relationships, interdependence, changes, or patterns (Fong, 2015). W hereas lineal questions imply a simple cause and effect relationship, circular questions embrace the interactive effects, reciprocity, and complex patterns within family systems (Nichols, 2013). In divorce sit- uations, it is often useful to use circular questions to help clients reflect on how things have changed over time. “Before you married, you entered a prenuptial agreement stating that both of you would be responsible for your own finances in the event of separation. How have things changed since you entered that agreement?” Circular questions may also be used to help clients ponder the views of other family members, whether those family members are present (L. Parkinson, 2011). Mindy might ask, “If Sparta were here today, what do you think he would say about how he wants to share time with each of his moms?” or “Nadine, how do you think Ellyn feels about your wanting her to get a full- time job outside the home?” Circular questions may also be used to encourage clients to reflect on each other’s motivations. “Nadine, I’ve noticed that Ellyn keeps saying that Sparta needs a stable home. W hy do you think she is saying that?” After Nadine responds, the media- tor can check back with Ellyn to have her clarify her motivations. On the actual issue of stability, a child does need stability, but this is not a child’s only need. A child also needs to be able to adapt to change. And a child can benefit from the meaningful, ongoing sup- port of both parents. The mediator does not need to provide this information in the form of statements, but rather, facilitate insight by asking questions and allowing the clients to fill in the details.

In conflict situations, clients often discuss what has not worked. Mediators may use cir- cular questions to help clients talk about what might work. “You’ve said that it hasn’t been helpful to debate whether Ellyn should go back to work. The discussion is going around in circles. Let’s get out of this perpetual revolving door. What do you think might work?” Here, the mediator empowers the clients to think and act differently. Alternatively, the mediator could use circular questions to encourage openness and hope (Fong, 2015). “When Sparta was born, both of you were able to work together to organize your lives in a way that satis- fied Sparta’s best interests. How can you reorganize your lives now, so you may once again collaborate for Sparta’s sake?” In this example, the mediator uses past positive patterns to promote hope and to overcome resistance to change.

Role- reversal questions invite one client to assume the other person’s position and con- sider that person’s perspectives (Mayer, 2009). Mindy might ask Nadine, “Assume you are in Ellyn’s situation. You have a job that requires a lot of travel and you have not been able to spend as much time with Sparta as you would have liked. Now, you are going through a separation process. How would you feel if you were told that you have no right to spend time with Sparta because you ignored him during the marriage?” Role- reversal questions invite clients to consider how the other person might hear, interpret, or respond to a situ- ation from the other person’s point of view. Such questions facilitate insight and empathy, and may also facilitate recognition. In response to the forgoing question, Nadine might respond, “If I were Ellyn, I would be angry. I know she wants to spend more time with Sparta.” In high- conflict situations, clients may have a tendency to resist being put into the other person’s shoes. Nadine might say, “I don’t know what Ellyn’s thinking. She chose a certain career, so she needs to accept the consequences of her choices.” Using a motiva- tional interviewing strategy, the mediator may simply roll with the resistance (W. Miller & Rollnick, 2012). Rather than insisting that Nadine look at the situation from Ellyn’s

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perspective, Mindy could use paraphrase to validate Nadine’s response and shift to another line of conversation.

Presuppositional questions assume that a certain type of change will occur, inviting cli- ents to discuss how and when that change will take place. Mindy knows there is a high level of anger between Ellyn and Nadine. To promote a rebuilding of trust, Mindy asks a future- oriented question, “How will you know when it is time to let go of the anger and move on with your new lives?” The mediator could also frame a presuppositional question from the child’s perspective. “How do you think Sparta’s life will change when you’ve reached an agreement and put this conflict behind you?” The mediator stimulates a new way of think- ing and interacting, inviting the parties to envision a more positive future from the child’s perspective. The mediator does not dictate what agreement they will reach, allowing the parties to decide how they will move toward this positive outcome.

Predicting the next step is also a future- oriented strategy. The mediator states a hypoth- esis about how one client may want to react and then invites the client to build on that hypothesis. Ellyn and Nadine are arguing over whether Sparta should go to day- care or stay at home with Nadine. “Ellyn, it sounds as if you want feel that Sparta would benefit from interactions with other children in day- care, but Nadine thinks that you’re ignoring her concerns about Sparta’s need for stability. I sense that you’re open to discussing Nadine’s concerns. Would you like to offer some options that take Nadine’s concerns and yours into account?” The mediator’s intervention presupposes that Ellyn is willing to discuss Nadine’s concern, while still allowing the client to agree or disagree.

Exception- oriented questions help clients move away from problems and focus on strengths and solutions. The mediator may ask questions to raise clients’ awareness of times or instances when things are different from what they are projecting. If Ellyn and Nadine were discussing how much they distrust each other, Mindy might ask, “Can you think of a time when you were able to trust each other? What was that like?” If Nadine says that Sparta is always very clingy and does not want to spend time with Ellyn, Mindy might inquire, “I wonder if there have been certain times when Sparta is less clingy. Tell me about an occa- sion when Sparta wanted to spend time with Ellyn?”

W hile the questions in this section can be very helpful in stimulating new thoughts and patterns of behavior, they can also be risky. Clients could feel defensive or may per- ceive the mediator as being biased. As noted earlier, mediators need to use family sys- tems questions in a respectful, balanced manner. They should not take sides or impose their beliefs on clients. W hen clients perceive the mediator is asking questions out of sincere concern, empathy, and hope for the clients, they are more likely to respond positively.

Rational Emotive Behavior Strategies and Skills

Rational emotive behavior therapy (REBT) focuses on the relationship between experi- ences, thoughts, emotions, and behaviors (Moore, 2014). According to Albert Ellis, creator of REBT, a person’s emotional reaction to a situation is affected by her thoughts about the situation (Ellis & Ellis, 2011). In some instances, people have irrational thoughts that lead to problematic emotional and behavioral responses. The role of the helping agent is to help clients overcome the tendency to think irrationally, thereby improving their emotional and behavioral responses to the situation (W. Ross, n.d.). Although REBT was developed for use by psychotherapists, its approach can be incorporated into the mediation process with- out becoming therapy, per se. In many conflict situations, clients have strong emotional reactions that make it difficult to manage the conflict. If mediators can help clients cor- rect misperceptions, misattributions, overgeneralizations, or other problematic thought

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patterns (as described in Chapter 2), they can help clients feel and respond more positively. To illustrate, consider the following situation:

Lois and Lemont lived together for 6 years. They have 2- year- old twins, Tasha and Tori. Although Lois wanted to get married throughout their cohabitation, Lemont kept delaying marriage, saying, “Who needs a marriage certificate to say that our love is for- ever?!” Recently, Lemont moved out of the house. Tasha has autism and Lemont was having difficulty dealing with her. Their pastor refers Lemont and Lois to Maris to medi- ate their separation. When Maris meets Lois for premediation, Lois presents as glum and brooding. She tells Maris, “I must be an idiot. I should have known he had problems with commitment. He never wanted to marry me and he was always more concerned with himself than anyone else. I’m so stupid.”

In this situation, Lois feels despondent because Lemont has moved out. Using REBT to conceptualize the situation, Maris notes that Lois’s emotional reaction is related to her thought processes in interpreting the situation. Lois feels depressed because she thinks she is stupid. She blames herself for not recognizing possible signs that Lemont was not truly committed to the marriage and family. She is beating herself up because she thinks she should have known better. Maris can help Lois challenge her irrational belief that she is stu- pid by raising questions to facilitate insight (W. Ross, n.d.). “Where is it written that you should have known that Lemont was going to leave you?” Maris can then help Lois develop more positive thought processes, helping her realize that she is a smart, caring person who wanted to make her relationship with Lemont work. Maris can help Lois see that even if she did miss some signs that Lemont was not committed to the relationship, she is still that smart, caring person. “Smart, caring people sometimes miss early warning signs about the trouble ahead.”

Lois may also be misattributing Lemont’s intent to hurt her by leaving. “He’s such a jerk. All he thinks about his himself. He has no concern for me or for the children. I’m not going to let him see Tori and Tasha. He deserves to suffer.” Lois feels hurt. The mediator can certainly start with the client by validating her pain and giving her permission to express her anger (L. Parkinson, 2011). Using REBT, however, Maris can also help Lois understand that Lemont may not have been trying to hurt her or the children. Maris could ask Lois about the various possible reasons behind Lamont’s decision to leave. With Lemont’s per- mission, Maris could also disclose the reasons he wanted to separate: his difficulty dealing with Tasha given her autism, stress in the marital relationship, and a belief that the children would be better if Lois and Lemont were living separately. Initially, Lois believes that love and family are forever. “Only a selfish or callous person would break up a family.” While her anger with Lemont is understandable, it could get in the way of moving on and building a better future for the family. If Maris can help her see that Lemont intent was not malicious, Lois may still harbor anger toward Lemont; however, she may also be able to approach coparenting in a more positive manner.

Another approach to confronting irrational beliefs is to ask questions about emergency situations (L. Parkinson, 2011). Assume Lois has been saying Lemont should have no fur- ther relationship with the twins. She believes it is not in their best interests. Lois wants nothing to do with Lemont. She never wants to talk with him again. The mediator could inquire, “What would happen if you died or if you were in an accident and couldn’t take care of Tori and Tasha?” Emergency questions help clients think about what matters most. Although she may not be totally happy with Lemont having a role in the children’s lives, she may realize that his involvement could serve positive purposes— particularly in emer- gency situations. Maris could help Lois understand that while it may be difficult to address

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conflict with Lemont in the short term, dealing with the conflict now may be for everyone’s benefit in the longer term (Mayer, 2009).

Maris may also assist Lemont with irrational beliefs. For instance, he may want to go to court because he thinks Lois is will never agree to anything he wants. He feels frustrated and vengeful. Two potentially irrational thoughts are embedded in Lemont’s responses: He is assuming that Lois has no capacity to reach agreement with him, and he is assuming that court will lead to better outcomes than mediation. “I’m going to fight for my children. I don’t care if it takes every cent I’ve got!” One way to facilitate insight is to surprise the cli- ent by agreeing with him (L. Parkinson, 2011). “Maybe it would be better for your children if you went to court and spent all your money on litigation rather than mediation.” This response opens discussion about the pros and cons of going to court, and spending money on a fight.

Assume Lemont feels highly anxious about spending time alone with Tasha. “I don’t know how to relate to my own daughter. I’m such a failure.” In this situation, Lemont is not living up to his own expectations as a father. He has hidden his true reasons for separat- ing from Lois because he feels ashamed and guilty. Left unabated, Lemont may continue to distance himself from Tasha. The mediator can help Lemont reassess his beliefs about what it means to be a good father. Lemont may come to realize that many fathers (and mothers) feel inept or lacking skill in some aspects of raising children. Good fathers do not run away. A good father recognizes when he needs help and he reaches out for that help. The mediator could help link Lemont with services that can help him learn more about parenting children with autism, as well as support groups that can offer mutual aid and moral support.

The preceding examples illustrate REBT strategies applied in individual sessions or cau- cuses. REBT analysis and strategies may also be used to help both clients deal with irratio- nal thoughts in joint sessions. Assume Lemont and Lois have reached impasse over how to share time with their daughters. They feel frustrated and want to terminate mediation. They may be assuming there is no way out of the impasse even though they have not explored all the options. To provide insight into their situation, Maris could use metaphoric storytell- ing. “Imagine the two of you are in the middle of a maze. You do not know the way out of the maze. You keep going down the same paths and keep getting stuck. What’s the best way to get out of the maze? [pause] How would arguing help you get out? [pause] Other than going down the same paths over and over, what could you do?” They could mark the paths they have tried to avoid simply repeating them. They could go over or under the barriers rather than just following the walls and turning back at each barrier. This metaphor could stimulate discussion about approaching the timesharing issue from different perspectives, using creative thinking, not giving up, and not simply going down the same dead- end paths.

The reality of divorce can be tough. Clients may be experiencing financial stress, rejec- tion, loss, embarrassment, and other issues. Although the reality of the client’s situation may be unpleasant, it may be unduly complicated by irrational thought processes leading to frustration with themselves, others, or their life situations. Mediators can use REBT to help clients overcome such frustrations by facilitating three types of unconditional acceptance:

1. Unconditional self- acceptance— “I am a fallible human being; I have my good points and my bad points.”

2. Unconditional other- acceptance— “The people who treat me unfairly are no more wor- thy and no less worthy than any other human being.”

3. Unconditional life- acceptance— “Life is not necessarily pleasant but it is never awful and it is nearly always bearable.” (W. Ross, n.d.)

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By facilitating such insights, mediators can help clients engage in conflict resolution more effectively.

Narrative Strategies and Skills

Narrative therapy builds on social construction theory, which posits that there is no sin- gular, objective reality but rather an array of realities that people construct through their language and storytelling (Berger & Luckman, 1967; Neimeyer, 2006). Stories capture the lived experiences of people, encapsulating feelings, thoughts, knowledge, memories, and understandings. Some stories that people tell are empowering, liberating, and inspirational. For instance, a divorcing couple could view themselves as turning a new page, appreciating the love and life they shared, and ready to move on with new energy and opportunities. Other stories are constraining, problem saturated, and blaming. For example, a separating couple tells a story of shattered dreams, loneliness, and acrimony. Storytelling is important in various models of mediation, as it allows clients to vent emotions, reflect on what has happened, and identify issues to discuss and problem- solve. Mediators can also use narra- tive strategies to help clients deconstruct and reconstruct their stories so they can manage conflict in a more positive manner (Winslade & Monk, 2008).

Deconstruction refers to analyzing narratives, exploring the symbolic meanings of their experiences and the stories they tell (W hite, 2011). W hen analyzing narratives, media- tors may encourage clients to reflect on the ways that family, culture, media, and other social systems have affected their stories. Often, our stories are constrained by structural constraints or expectations. For instance, a client’s story may be affected by laws, religious beliefs, and community norms that impose limits on what is appropriate or inappropriate behavior. Consider the messages that we receive regarding marriage and divorce. Wedding vows typically suggest that the bonds of marriage are forever. Each spouse makes public promises, for instance, to love, honor, and respect the other person for all the days of their lives. Within this context, the story of divorce may be expressed as a breach of vows, a failure, or a sign of dishonesty and irresponsibility. Although many people have images of divorce as nasty, devastating, or adversarial, divorce stories could also be framed as respectful, empowering, and collaborative experiences. Thus, to help parties deconstruct the meanings they attach to their narratives of marriage and divorce, a mediator might ask, “W hat are the stories that your family and cultural community have taught you about mar- riage and divorce,” “W hat does divorce mean to you,” and “How might these stories make it more difficult for people to go through divorce?” Deconstruction helps clients identify social forces that have shaped their perceptions, including how dominant narratives in society may be having a negative impact on their current experiences of separation and divorce (Winslade & Monk, 2008).

Reconstruction refers to the process of retelling stories in a manner that clients can see their conflict and future in a more positive light (White, 2011). “We’ve talked about the meaning of divorce that you learned from important people in your lives. If you were to start over and build the story of a ‘good divorce,’ what would a good divorce look like?” Rather than being destined to acrimony and strife, the clients can rewrite their divorce story to include acceptance, cooperation, and focusing on the child’s best interests. The mediator does not try to engage parties in a search for objective truths, but rather an exploration of stories that remove the problems or constraints of their original narratives. When helping families rewrite their narratives, the mediator could help the family use positive reframes and metaphors in their stories (as described in the introduction to this module). Consider a family that describes itself as “at war” or “like a demolition derby.” The mediator could help

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them explore a narrative where, “we’re in this boat together” or “this family is a garden that needs to be nurtured.”13

The following situation will help illustrate additional applications of narrative strategies.

Three years after Hank’s first wife died, he married Winona. Winona embraced Hank’s infant daughter, Daisy, as her own. Winona and Hank were initially very happy together. Two years into the marriage, Winona decided to separate from Hank because he did not want more children. Having children was very important to Winona. Angered by Winona’s rejection of their marriage, Hank told Winona she would have no further contact with Daisy. “You are not Daisy’s real mother. You have no rights to custody or visitation.” Winona’s attorney referred them to Merv, a mediator who uses narrative mediation.

When Winona tells her story to Merv, it is saturated with problems. She views herself as an innocent victim and Hank as a heartless traitor. After all, she accepted his daughter as if she was her own child and now Hank is acting as if her relationship with Daisy was a meaning- less sham. Winona also sees herself as a victim because Hank prevented her from having other children. Hank says he is the victim because Winona initiated the divorce. In Hank’s view, everything was fine until Winona started making demands about having more chil- dren and callously discarded the marriage when she did not get her way. Winona and Hank’s narratives are typical of many conflict stories in which each party paints the other side as evil or blameworthy (Winslade & Monk, 2008). Merv helps Winona and Hank unpack the assumptions and constraints embedded in their stories. “What does it mean to be a real parent?” and “What are the images that we’ve learned about stepparents, and how are the different from biological parents?” These questions open discussion about parents as people who love and support their children, as well as fairytales and images of stepparents as evil, jealous, and devious. To help Winona and Hank construct a new story, she frames her question from Daisy’s perspective. “What stories do you want Daisy to be able to tell her children about how she was raised, and what types of models that both of you were as parents?”

Often, the animosity or resentment between separating couples makes it difficult to think about a future with a more positive relationship. A narrative technique called “externalizing the problem” may be used to help clients separate the person from the problem. W hen clients ascribe evil, heartlessness, or other negative labels to each other, the mediator can help them externalize the problem by labeling a problem that exists outside the people, but has a negative impact on them. “If you were to describe a problem that makes it difficult to cooperate, what would you call that problem?” They might label the problem as Disappointment, Resentment, or Animosity. Merv could then inquire, “How would your lives be different if you could lock Animosity in a box and you didn’t have to deal with it anymore?” Externalizing the problem helps clients develop distance from contentious feelings and open their minds to the possibility of a more positive future (Billikopf, 2014). If one client labels the other as an alcoholic, the mediator could externalize the problem by asking, “How does Alcoholism make life challenging for the family?” Likewise, if a client is labeled as irresponsible, the mediator could ask, “ W hat would the family look like if Irresponsibility took a vacation and never came back?”

13 In one case when I used this metaphor, a client suggested that we start by pulling out the nasty weeds— clearly alluding to the other party.

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If clients are not focusing on the child, another method is to have the parents bring photographs of the child into the session. The mediator could then ask each parent to tell stories about the child, focusing on her talents, strengths, and positive attributes. Once the clients start focusing on the child, the mediator could ask, “Please describe a time when both of you were contributing to Daisy’s happiness and well- being.” The mediator could also invite discussion about constructive ways of dealing with conflict. “Let’s talk about a time when you had a difference of opinion about how to be good parents to Daisy. How did you overcome your differences so you could do what was best for her?” By highlighting positive stories from the past, the mediator fosters conditions for the clients to create an alternate story moving forward.

Initially, Hank wants sole custody with Winona having no rights of visitation or access to Daisy. Merv might invite Hank and Winona to explore two different stories, one in which Winona disappeared from Daisy’s life and one in which she continued to have a role. “Let’s talk about the first option first. Hank, what would it be like to raise Daisy on your own? What are some of the good and some of the not- so- good things about being a single par- ent?” Merv could then help them explore stories in which Winona continues to maintain a relationship with Daisy. “Now, let’s envision a future where both of you continue as co- parents for Daisy. In an ideal situation, what would coparenting look like?” Winona or Hank may resist this discussion, noting that this is not the ideal situation. Merv could respond by validating their concerns, allowing them to talk about the potential problems, while also helping them imagine a more positive story. If they want to discuss a “realistic” story, they could construct a story that includes both good and not- so- good experiences (Mayer, 2009). Although they do not envision themselves as “best of friends,” they could envision a more businesslike, respectful relationship as coparents. Narrative mediators can help cli- ents focus on stories that facilitate more collaborative relationships, while validating that future conflict and challenges are to be expected. The preferred story moving ahead is not a relationship without conflict, but rather a relationship that deals well with differences (R . Fisher & Brown, 1988).

Solution- Focused Strategies and Skills

Solution- focused therapy (SFT) is a strengths- based brief intervention designed to help people progress toward specific outcomes that will have positive impacts on their lives (P. De Jong & Berg, 2013; Institute for Solution- Focused Therapy, n.d.). Many strategies and skills from SFT fit naturally with an interest- based approach to mediation as they emphasize problem solving. However, they also have a therapeutic element as they build on the resilience and capacities of the clients, empowering them to continue to make positive changes in their lives beyond the formal intervention process. SFT strategies that can easily be incorporated into mediation include looking for previous solutions, looking for exceptions, validating what is working, inviting clients to do more of what is working, coping questions, miracle question, and scaling (P. De Jong & Berg, 2013; Ratner, George, & Ivenson, 2012). To illustrate the use of these strategies, consider the following situation.

Grandma Ginny is 83 years old. She has been living on her own until recently, when she fell in her bathroom and broke her hip. She is recuperating in the hospital, anxiously awaiting discharge. Desiree, the discharge planner, schedules informal mediation with Grandma and her two adult children, Cyrus and Catriona. Given Grandma’s broken hip and her early stage dementia, Cyrus and Catriona both realize that Grandma can no longer live alone. They cannot afford to place her in a nursing home. Neither child

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wants to take Grandma into their home because a long history of “conflict and grief with Grandma.”

Adopting a solution- focused orientation, Desiree does not delve into the long history Grandma’s relationship with her children. She does not need to assess how the conflict started or why it seems to be acrimonious. Desiree can ask focused questions about the past, particularly in terms of looking for previous solutions. W hen people are stuck in con- flict, they may not be aware that the solutions they seek may be ones they have used in the past. Thus, Desiree might inquire, “I know this is the first time that Grandma has had a seri- ous accident and I know it’s hard to think of the best way to care for her now. I’m wonder- ing if we could think about other situations when someone in the family had an accident or took ill. How did the family care for this loved one in his or her time of need?” Identifying previous solutions has two potential benefits. First, it may help the family identify a solu- tion that they could use for the current situation. Secondly, it reinforces the family’s sense of self- efficacy; they have had the strength and resources to deal with difficult situations in the past, so they may realize they possess similar capacities to deal with the current situation.

When people are engaged in conflict, they may focus on the problems and negative aspects of the situation. The strategy of looking for exceptions helps families focus on possi- bilities and strengths rather than obstacles and weaknesses. Catriona and Cyrus say that they cannot be with Grandma for any extended length of time. Every time they spend more than a few hours together, they end up screaming and arguing. Desiree invites them to consider exceptions. “I understand that being together for more than a few hours has been frustrating. Can you think of a time when you spent time together and things were pretty good, perhaps even wonderful?” Cyrus and Catriona might recall a family trip, many years ago, when every- one did get along. There were no major fights and the whole family enjoyed themselves. Desiree can then help them build on this experience, exploring factors that made this occa- sion a positive exception. For instance, they were away from their homes and usual routines, they were touring the beautiful mountains, and they had one vital rule … if you’re getting upset or claustrophobic being cooped up with the family, take a walk. Initially, family mem- bers may not think that the exception has any relevance to the current situation. However, they may be able to build on that experience to help resolve the current conflict. Focusing on positive exceptions also fosters positive expectations and possibilities, which may facilitate option generation for mutual gain.

The strategy of validating what is working refers to complimenting clients for interact- ing in a positive manner or behaving in a manner that promotes effective resolution of the conflict. Grandma expresses embarrassment that neither of her children want to spend time with her. She feels rejected. Desiree might reframe the situation and offer a compliment. “Grandma, I hear that the respect and dedication of your children means a lot to you. I do want to commend all of you for coming today to make arrangements for Grandma’s health and well- being.” As a mediator, using validation can be tricky because it may affect neutral- ity. If the mediator commends a particular type of behavior, the mediator may be showing bias toward a particular person or solution. Commending all parties in a mutual manner or focusing on process issues is relatively safe. Commending one person for a particular action may be riskier. Assume Cyrus offers to take Grandma into his home for the summer months. If Desiree responds, “That’s a great offer, Cyrus,” Catriona might think Desiree is siding with him. One way to foster neutrality is through equidistance, that is, ensuring that the mediator balances support for one party with support for the other party. Thus, if Desiree compliments Cyrus, she should make sure she also compliments Catriona and Grandma— not necessarily at the same time, but ideally close in time. Validating what is

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working supports progress and encourages people to continue to move ahead in a positive fashion.

Inviting clients to do more of what is working refers to identifying positive patterns of behavior and asking clients if they would like to continue that pattern. Thus, if Grandma, Cyrus, and Catriona start brainstorming creative solutions, the mediator could encourage them to continue. “We’ve talked about sending Grandma to a commune, having Catriona open a nursing home, and buying a motorhome so Cyrus and Grandma can tour the coun- try together. What other creative options are there?” Once again, mediators should be care- ful with this strategy to avoid perceptions of bias. Assume they agreed to a short- term trial arrangement where Grandma lives with Cyrus and Catriona visits during the evenings to give Cyrus respite. When they return, Desiree might say, “The temporary arrangements seem to be working. Perhaps you could continue them.” If Desiree’s comments are based on her own assessment of what is working, then she is imposing her beliefs. Alternatively, Desiree could ask the clients what is working and help them build on the positives. “Let’s talk about what worked well over the past week. What have you learned and what can we build on to ensure positive living arrangements for Grandma over the longer term?” Helping clients identify what is working is more empowering, as they use their own insights to further the conflict resolution process.

Coping questions are similar to inviting clients to do more of what is working. Both strat- egies invite clients to reflect on the past in order to determine what would be beneficial for the future. Coping questions specifically ask clients to ponder strategies they have used to manage or cope with particular problems, conflicts, or stresses in their lives. Grandma Ginny and her family are struggling with how to deal with her memory loss. Desiree might explore their prior means of coping with this concern. “Having dementia can be stressful for the whole family. What are some ways that you’ve coped with this stress in the past?” Here the intent is not to fix or overcome the problem, but to identify ways to cope and adapt despite the problem. Catriona might respond, “Humor helps. Sometimes I tell myself that I’m lucky Grandma asks the same question over and over. I know my answer even before she’s finished the question.” Other coping strategies the mediator could help them iden- tify include diversions (taking a walk), accessing help (talking to another family member), positive self- talk (I am patient and loving), and mindfulness (e.g., through meditation). The key is helping clients identify ways of coping that work for them.

Perhaps the most recognized technique from SFT is the miracle question. Essentially, the mediator (or other helping professional) invites clients to consider how things would be different if their lives magically transformed into an ideal situation (P. De Jong & Berg, 2013). Miracle questions inspire people to dream big and think outside the box. They also help people focus on what could be and what they might be able to do to build a better future. Desiree might query, “Imagine that you woke up tomorrow morning and, magically, the conflict we’ve been discussing would be no more. Everything would be perfect. How would your situation be different?” Alternatively, the miracle question might be phrased, “Assume you have a magic wand that you could wave and suddenly, the family’s situation would be perfect. What would this perfect situation look like?” Clients might describe a situation that is perfect, and also unattainable. Still, their responses may spur creative think- ing and solutions. Assume Grandma responds, “I would be young and healthy.” Desiree could ask for details about being young and healthy. The family might discuss Grandma having independence, being free to move around that house and beyond, and regaining her memory. Rather than negotiating “who gets stuck with an old and infirm Grandma,” the discussion turns to how they can foster Grandma’s health, independence, and memory. Even though they do not have a machine that can turn back time, they can implement strat- egies to improve Grandma’s life situation … as well as Catriona’s and Cyrus’s. They talk

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about rehab services, occupational therapy, memory interventions, and modifications to their homes that can improve everyone’s quality of life. Although the process begins with discussion of an unattainable miracle, it can lead to development of concrete, feasible solu- tions. Even baby steps toward the grand miracle may be worth the effort.

Scaling questions invite clients to operationalize their goals or preferred outcomes (Ratner et al., 2012). Assume the family’s goal is to lower its level of conflict. Initially, the mediator may ask clients to quantify their current situation. “On a scale of 0 to 10, with 0 being no conflict, 5 being moderate conflict, and 10 being extremely high conflict, how would you rate the level of conflict in the family?” Different family members may have dif- ferent ratings, which is fine. They may have different perceptions and they do not need to agree on “what is.” The mediator could then ask family members to describe what it means to be at a certain rating. “You’ve rated family conflict as an 8. What are some examples or indicators that the conflict is at this level, as opposed to being at a level 10 or a level 5?” The clients might describe examples of arguments, avoidance, yelling, frustration, or other indicators. The mediator then turns the client’s attention to the possibility of improvement. “How would you know whether the family was able to lower its level of conflict to a 7 or a 6? What would people notice as different in the family?” The family might describe a decrease in the intensity or frequency of conflict, or perhaps a slight increase in respect, problem solving, or listening. The mediator then invites the family to take one small step toward improvement. “What is something that each of you could do to help move this fam- ily toward a 7 or a 6?” Client goals should be individualized to the clients’ situation. For instance, they may want to work toward better communication, improved collaboration, or resolving a particular conflict. In Grandma Ginny’s situation, for instance, they might work toward a goal of Grandma’s independence. Scaling questions help clients identify goals and develop strategies to work toward preferred outcomes. Although the stated goal may seem ideal and overwhelming, scaling helps clients partialize their ultimate goal into more readily achievable steps. As with other solution- focused strategies, scaling questions help people mobilize toward more positive situations, which may include resolution of conflict.

INVOLVING CHILDREN IN MEDIATION PROCESSES

When working on parenting plans, the vast majority of mediators agree that it is appropri- ate for mediators to focus parents on the best interests of the child.14 Mediators do not impose their view of what is best for the child, but rather, invite parents as experts in their own families to make this determination. Mediators hold disparate views, however, on the issues of whether and how the child’s voice should be heard in the mediation process. Some mediators suggest children should generally be included in mediation, because divorcing parents have difficulty separating their own needs from those of the children (Lowenstein, 2009). Some mediators are open to bringing children into the mediation process, depend- ing on the circumstances. Other mediators never meet with children. They may rely on the parents, child’s lawyer, guardian ad litem, child’s therapist, child consultant, or other profes- sional to express the child’s wishes (Ballard, Holtzworth- Munroe, Applegate, D’Onofrio, &

14 Some transformative mediators might argue that the clients are free to decide a parenting plan, without restriction, and that it is not the role of a mediator to focus them on the child’s best interests. This view could be problematic in that some mediator codes of ethics and standards of practice require family media- tors to focus clients on the child’s best interests (Association of Family and Conciliation Courts, 2000, Standard 8). Also, if clients reach an agreement that is not in the child’s best interests, then a vulnerable child will suffer.

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Bates, 2013; L. Parkinson, 2011). Although family law statutes suggest that a child’s wishes, views, or preferences should be considered when determining the best interests of the child, such statutes do not stipulate how a child’s voice should be heard and what weight a child’s voice should be given (Byrnes, 2011). This section explores factors that mediators should consider when determining whether and how to include children in the mediation process.

One of the first factors to consider is the mediator’s competence. Does the mediator have sufficient knowledge and skill to be able to involve children in a safe and effective manner? For instance, a mediator lacking such competence might place a child in the inap- propriate position of having to choose one parent over the other. An unskilled mediator might also put undue pressure on a child who is already stressed about the changes in the family arising from conflict since the separation. When working with children, good inten- tions are not enough. Mediators need to understand their developmental stages, cognitive abilities, emotional responses, motivations, and roles they play in the dynamics between their parents.

The age of the child also plays a significant factor. Very young children may not have sufficient cognitive understanding and communication skills to express their needs and wishes. They may be highly anxious about the changes in the family, not fully understand- ing what is happening during the separation process (L. Parkinson, 2011). Fearing rejec- tion or abandonment (Emery, 2011), they may also be highly vulnerable to manipulation by their parents. Older children may be in a better position to share views that may help parents make better decisions. Although some mediators include children at a particular age (e.g., 12 or older), maturity and other circumstances may be more important than the chronological age of the child. The type of involvement also factors into whether younger children should be included. For instance, some mediators meet with children to get to know them and to explain the mediation process to them. In such cases, the mediator could meet with children as young as 3 or 4 years. Other mediators meet individually with chil- dren to give them an opportunity to express their concerns and wishes, which the mediator will then share with the parents (L. Parkinson, 2011). For these purposes, children may need to be at least 6 or 7 years, so they can adequately express their concerns and wishes. In yet other mediations, children participate in joint mediation sessions with their parents. When working with teenagers, for instance, it may be useful to involve them in meetings with their parents because implementation of the parenting plan depends on the teenager’s compliance. If a teenager is not willing to spend alternate weekends with each parent, for instance, that teenager may simply refuse to go. Involving the teenager directly in mediation allows the parents and teen to develop an agreement that meets all their interests.

When determining whether to involve children in mediation, the following factors weigh against including them.

• The child is involved with other mental health professionals who are helping the child adjust to the separation. The child may not need another professional prying into her life. Also, the other professional may be able to provide the mediator and parents with information about the child’s needs, interests, and wishes.

• The mediator is concerned that one or both parents will pressure the child to say certain things or to maintain certain family secrets. “Don’t you dare say anything about my drink- ing!” The mediator does not want to draw the child into the parents’ conflict or set up the child for fear of reprisal by either parent (Ehrlich, 2013).

• The parents or child do not want the child to see the mediator. The mediator could explore why they do not want the child to see the mediator, as there may be concerns the mediator can address. Ultimately, the mediator should respect the wishes of the parties.

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W hen discussing the possibility of bringing children into the mediation process, mediators may help them identif y potential benefits of doing so. Research suggests that the vast majority of children appreciate being included in mediation processes (L. Parkinson, 2011). Children may fear having to go to court, but still want their voices to be heard on matters affecting them (Weisz, Beal, & Wingrove, 2013). Direct par- ticipation in mediation helps children become informed about the separation process, including how parenting, legal, and day- to- day issues may be handled in the mediation process. Parents may avoid talking with their children about their separation in order to shield them from conflict. Children may feel relieved when the mediator helps them understand mediation and how it may help their family. The mediator can also convey reassuring messages from the parents to the children. “ Your mom and dad tell me they love you dearly. They want you to know that their separation is not your fault. They know the separation process has been difficult, and they want to do whatever they can to ensure that you feel safe, loved, and supported. They asked me to tell you that although they are divorcing each other, they are not divorcing you. Parents are parents forever. They will continue to be there for you. Your parents asked me to meet with you so I can hear your concerns. I can then share this information with your parents so they can focus on your concerns during mediation.” Children value having their voices heard and validated (L. Parkinson, 2011). By discovering children’s concerns, mediators can help parents address them.

Before meeting with a child, mediators should talk to the parents about how they will invite the child into the mediation process. “Please explain that I would like to meet with your son so we can talk about the mediation process and any concerns that he thinks we should be considering. It’s important that you tell him that it is OK to share whatever infor- mation he wants to share. We want to avoid putting any pressure on your son. I will not be asking who is the better parent or where your child would like to live. This is an opportu- nity for me to get a better understanding of your son’s interests and to answer any ques- tions about the mediation process.” The mediator may ask to meet briefly with the child and parents together, to help the child become comfortable and to ensure that everyone is on the same page regarding the format and purpose of the individual meeting with the child. Regarding confidentiality, the mediator may explain that the intent is for informa- tion from the meeting with the child to be shared with the parents. The mediator will not necessarily report everything the child says. The mediator and child will work together on what information will be shared, and how. For instance, the child may write a letter to share with the parents, or the mediator may convey the child’s views directly to the parents (L. Parkinson, 2011).

When meeting with children, mediators should let them know that some decisions are the responsibility of the parents, for instance, the child’s primary residence. Mediators should also let children know what types of questions and input from the child would be helpful, for instance,

• questions about the mediation process, • concerns the child has had about the separation process, • examples of what each parent has done to make the separation process easier for the

child, • examples of what each parent could do to make the separation process better for the

child, and • suggestions for what the parents should think about when they are working out their

parenting plan (including timesharing, holidays, education, activities, and house guidelines).

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By meeting with children, mediators may identify a number of concerns that their parents may not have considered:

• “When I go to my dad’s house, will I have to bring my own bed?” • “Since my parents live in different cities and I have to go back and forth, am I going to

have to have two sets of friends and two different soccer teams?” • “If each of my parents has a different set of clothes for me, does that mean that I have to

change clothes in the car when I get to my other parent’s house?” • “Who gets custody of my hamster and my teddy bear?”

The mediator may also ask about particular concerns raised during mediation, for instance, why the child may be refusing to spend time with one parent or why the child has been struggling at school. If the child raises concerns that give rise to a reasonable suspicion of child abuse or neglect, the mediator should report this information to child protection authorities (as require by state law).

If there is more than one child, then the mediator and parents need to decide whether the siblings should be seen together. The primary advantage of seeing siblings together is that they may feel more comfortable. A potential disadvantage is that they may speak with one voice— perhaps the voice of the eldest or most assertive child— so the mediator may not get a complete sense of each child’s unique views. If the mediator meets with the chil- dren together, the mediator may explain that it is OK if each child shares different views or concerns. All voices are welcomed and valued.

When the mediator shares children’s views with the parents, the mediator could begin with examples of what is going well and what the child appreciates. “You have a bright, articulate daughter. She says she is glad that the two of you are working out a shared par- enting plan. She particularly appreciates the calendar that lets her plan where she will be from day to day.” The mediator can also reframe some of the child’s concerns about the past into hopes for the future. A concern that a father is frequently late for pickup times could be reframed, “Your daughter says that timeliness is important to her. She likes to know exactly when she will be picked up, so she won’t get anxious or bored waiting.” What a child voices as her concerns or wishes may or may not represent what is in her best interests (Lowenstein, 2009). Still, hearing a child’s voice can be very helpful in focusing parents on what is truly important— to the child, and perhaps to the entire family.

* * * * * Conflict within families is to be expected. When families are experiencing challenging transitions, mediation can help them manage the emotional, relational, practical, and legal issues. Mediation can also lay a foundation for more effective communication, interactions, and conflict management as the family establishes its new equilibrium.

KEY POINTS

• Family mediation can be used to help families manage a variety of conflicts and transitions, including marriage, separation, divorce, parent– youth conflict, child abuse and neglect, elder guardianship, end- of- life issues, family business disputes, and estate planning.

• Therapeutic family mediation helps clients address psychological, emotional, and rela- tional issues in order to adjust to transitions, cope with stress, renegotiate family relation- ships, improve interactions, and enhance family functioning.

• To be competent to provide divorce and separation mediation, mediators require knowledge and skills pertaining to family law, family dynamics, child development,

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high- conflict situations, family violence, cultural diversity, and community resources and supports.

• Therapeutic family mediators use premediation sessions and caucusing to assess family dynamics and conflict, to prepare clients and attorneys for mediation, and to address power and safety issues.

• Mediators can incorporate family systems strategies and skills, including structural ques- tions, strategic questions, circular questions, role- reversal questions, presuppositional questions, predicting the next step, and exception- oriented questions.

• Mediators can incorporate rational- emotive behavior therapy strategies and skills by helping clients gain insight into irrational thoughts that may be leading to problematic emotional and behavioral responses.

• Mediators can incorporate narrative strategies and skills by helping clients explore and deconstruct stories that may be causing or maintaining conflict and problems, and by helping them reconstruct stories to foster a more collaborative, positive future (e.g., a relationship that can deal well with differences).

• Mediators can incorporate solution- focused strategies and skills such as looking for pre- vious solutions, looking for exceptions, validating what is working, inviting clients to do more of what is working, coping questions, miracle question, and scaling.

• To ensure that children’s perspectives are considered, family mediators can meet with children individually, invite them into joint mediation sessions with parents, invite an advocate to speak on their behalf, or focus parents on the views, wishes, and best inter- ests of the children.

DISCUSSION QUESTIONS AND EXERCISES

1. AMBULANCE CHASING: Rajesh recently separated from Sushila. He is afraid of going to court because of the high legal fees and adversarial relations it may spawn. He calls you, a family mediator, to ask Sushila if she would be willing to mediate. Rajesh tells you that Sushila is not familiar with mediation, but thinks the mediator will force her compromise and give Rajesh joint custody of their son, Sunil. What are the benefits and risks of contacting Sushila? What should you do, and why? If you decide to contact Sushila, what would you say to her?

2. PREPARATIONS: Polly and Phil are engaged in a bitter custody battle over their chil- dren, Cam and Chester. Assume you (as mediator) are meeting with Phil to help him prepare for the first joint session. How would you respond to each of the following state- ments from Phil? Provide your rationale for each strategy.

a. Polly always screams at the kids. She’s never going to change. b. It’s no use talking … she’s not capable of being reasonable. c. I don’t want to meet with Polly face- to- face. It just makes me more anxious. d. I won’t talk to her until she apologizes for how she’s been using the kids as pawns, manipu-

lating them just to try to hurt me. e. I get so upset when she calls my fiancé, “That twinkie.” f. The kids are not safe with her. She has a violent temper.

3. “REAL” FATHER: When Yolanda and Seymour discovered they had fertility issues, they agreed to use sperm from an anonymous donor. Initially, both parents were exhila- rated with the birth of their son, Aubrey. Within the past year, they noticed Aubrey was not developing normally. He was diagnosed with a severe intellectual disability. Given Aubrey’s intellectual challenges, Seymour wants him placed in a special institution. Yolanda refuses, so Seymour moves out. During intake for mediation, Seymour

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tells you (as mediator) that he is not Aubrey’s real father so he wants nothing to do with Aubrey. He also says he has no financial obligation toward him. As mediator, what ethi- cal issues does this situation raise for you? What types of emotions might be affecting each parent? What strategies would you use with Yolanda and Aubrey to help prepare them for mediation?

4. DOG FIGHT: Delta and Doug are divorcing. They ask you to help them mediate cus- tody of their prized canine, Carl, on the basis of “the best interests of the pet.” You believe that dogs are covered by the equitable division of property laws, not child cus- tody laws. Doug and Delta insist Carl is like a child to them, not an inanimate piece of property. How should you deal with their request, and why?

5. POWER OF GENDER: Some critics of mediation suggest that mediation systemi- cally favors men because women generally have less power than men (e.g., lower sala- ries, less likely to control family finances, perceptions of lower status, less competitive or assertive) (L. Parkinson, 2011). How can family mediators assess whether such power imbalances exist with a particular couple? If such imbalances do exist, how can the mediator redress them? In what ways might women have more power than men?

6. DELAY TACTICS: Ferdinand seems to be doing everything he can to delay media- tion: canceling meetings, asking to extend deadlines for sharing financial information, and arguing ad nauseam during mediation. The mediator thinks he is not mediating in good faith but does not want to make such an accusation, for fear of losing neutrality. How should the mediator handle the situation?

7. CHILD FOCUS: If a family mediator uses her control over the process to focus the parents on the child’s best interests, the parents may feel their own concerns and inter- ests are not being heard. If the mediator does not focus the parents on the child’s inter- ests, the parents may develop an agreement that focuses on their interests rather than the child’s (L. Parkinson, 2011). What is the appropriate role of a mediator in relation to focusing parents on their child’s interests versus their own?

8. SKILL FACTOR: For each of the following mediator responses, identify whether it is an example of a structural question, strategic question, circular question, role- reversal question, presuppositional question, predicting the next step, and exception- oriented question:

a. How did your relationship change after you each hired an attorney to help with the divorce?

b. It sounds like your son does not like playing the role of messenger between the two of you. Let’s take him out of the middle. What role could he play so that he does not have to be a pawn in the middle of your conflict?

c. Assume that you are able to resolve the trust issue. How would your relationship as copa- rents be different if the two of you had a high level of trust?

9. ANGER AND IRRATIONALITY: Vera is virulently angry with her husband, Bart. Unbeknownst to Vera, Bart mortgaged the house to invest in a risky business ven- ture. W hen the venture tanked, they lost their house and all their savings. Vera took the children and moved in with her mother. She refuses to allow Bart any con- tact with the children. During intake, the mediator assesses that Vera’s anger may impede effective mediation. How might the mediator use strategies from REBT to prepare Vera for mediation? How could the mediator use strategies from SFT to prepare Vera?

10. THE STORIES WE TELL: Write a paragraph recounting one of the interesting sto- ries that your family frequently tells about your grandparents’ marriage (or an inter- esting story of another marriage in the family). Given this story, what does the family value most? Fear most? W hat are the messages in this story concerning how family

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MeMor anduM of under standing

Dear Maude and Harold: This letter is to summarize my understanding of the arrangements that we reached in mediation on July 11, 20XX. This is not a formal or binding agreement, though you have agreed that I would send copies of this letter to your attorneys for their review. They can advise you of the best way to proceed in order to formalize the agreement and ensure that both of you can follow the terms of the agreement in the best interests of your 5- year- old daughter, Damagina. If you have any questions or concerns about this summary, please do not hesitate to contact me:

1. Because Maude slept around during marriage, it is in the best interests of Damagina to be kept in the possession of her father, Harold.

2. Harold will let Maude see Damagina for visits every other weekend, until she is 18 years old.

3. When Maude is babysitting Damagina, she will heretofore not accept any men into her house and expose Damagina to any activities of a lewd or adulterous nature.

4. Birthdays and holidays will be as agreed. 5. Both parents will raise Damagina in good religious practice and values, and Maude

will go to church with Damagina whenever they are together on a Sunday. 6. Harold will pay for all of Damagina’s stuff, including her clothes. 7. Maude will pay child support as soon as she gets a good job. 8. Damagina used to wet her bed, so it is important for both parents to treat each

other with respect and not to castigate one another. 9. If there is any more conflict, I will mediate it for you.

Thank you for all the hard work that you invested in mediation. You showed that you love Damagina enough to ensure that her best interests always remain the focus of your attention and care.

Sincerely, Marvinelle the Magnificent Mediator

members should approach difficult issues, such as divorce, death, or high conflict in the family? If you could magically change one aspect of this story, what aspect would you rewrite?

11. MOU: Review the following “Memorandum of Understanding,” which is based on a divorce case involving Harold, Maude, and their daughter, Damagina. Identify prob- lems with the way that it is written. Rewrite the memorandum to ensure that it is: • clear (using plain language rather than legalese; avoiding ambiguous language), • specific (but not too detailed, given the nature of the situation and the expected

needs of the parties), • impartial (avoiding bias or imbalance), and • focusing on positives and the future (rather than negatives or the past).

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ROLE- PL AY 8.1: “DIAS DIVORCE”— PREPARATION

Mrs. Dias and Mr. Dias have recently separated. Mr. Dias’s lawyer, Ms. Lopez, filed an application in court requesting interim (temporary) custody of their two children, Lenny (age 5) and Skeeter (age 7). Mrs. Dias does not have a lawyer. A judge hearing the appli- cation ordered Mr. Dias and Mrs. Dias to go to mediation. Ms. Lopez is not a big fan of mediation, but she agreed to contact a mediator, Michael Moore, and arrange for the parties to go for mediation. This role- play involves a telephone call between Ms. Lopez and Michael.

Ms. Lopez will initiate the phone call and ask about mediation services for the Dias family. She will let the mediator know that she does not generally trust mediation because mediators tend to favor women, information in mediation could be used in court, and mediators do not know enough about the law to advise clients properly or help them win their rights. The only reason she is initiating the referral is because of the judge’s order. Ms. Lopez suggests that Mrs. Dias is mentally ill, with paranoia or something, so mediation may be inappropriate. Both Mr. Dias and Skeeter have a speech impediment (stuttering).

To prepare for this role- play, Michael should consider how to explain his therapeutic model of mediation. He should also consider how to address possible concerns raised by Ms. Lopez, including her distrust of mediation and her suggestion that Mrs. Dias is mentally ill.

Debriefing : What strengths did the mediator exhibit in terms of explaining TpM? How did the mediator deal with concerns related to alleged mediator bias? How should the mediator deter- mine whether Mrs. Dias has sufficient mental capacity to participate in mediation? What power issues were raised during the role- play? How should the mediator address these power issues?

ROLE- PL AY 8.2: “FAMILY PL ANNING”— CULTURAL INTERPRETER

For this role- play, team up with a person from a different cultural background. One of you will role- play a mediator. The other will play a cultural interpreter. The mediator is help- ing a couple negotiate a prenuptial agreement. The couple wants to mediate the following issues: the number of children and approximate timing for having children; whether one or both spouses will work outside the family home; and how they will make decisions about parenting issues, such as discipline and education. The couple is from a different back- ground than the mediator, so the mediator arranges to meet with a cultural interpreter to gain a better understanding of cultural issues that may be raised in this case.

The mediator should plan what types of questions to ask the cultural interpreter in order to prepare for this meeting (e.g., “What are the norms within this culture about parenting?” “What happens within the community if people do not follow the norms?” “What mean- ings do parents give to the roles they play as mother or father?”). During the meeting, the mediator should treat the interpreter as an expert and demonstrate deep interest in learning from the interpreter. The cultural interpreter should draw from his or her culture to answer the mediator’s questions. The role of the cultural interpreter is to educate the mediator. The interpreter may not feel comfortable making generalizations about his or her culture. If so, the mediator can validate these concerns and negotiate what types of information the inter- preter would be willing to share. For further information on the process of ethnographic interviewing, see C. Frank (2011).

Debriefing : What did the mediator learn about the family’s culture? How would this informa- tion affect the way that you mediate with the couple? What ethical issues does this scenario raise for the mediator?

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ROLE- PL AY 8.3: “GRANDPARENT RIGHTS”— NARRATIVE STRATEGIES

For this role- play, a mediator (Marta) will be meeting with Fabian and his mother- in- law, Lucille. Fabian’s wife, Whitney, died in a car accident. Lucille blames Fabian for her daugh- ter’s death, as Fabian was driving while drunk. Fabian is the sole parent and guardian for his three children, Corey (age 13), Calla (age 11), and Charlotte (age 8). Fabian refuses to allow them to spend time with Lucille. He is concerned that Lucille will turn the children against him. Fabian admits to drinking on the night of the fatal accident, but he does not see himself as an alcoholic. Lucille has pursued visitation under the state’s grandparent visita- tion rights laws. Lucille contends, “As the children’s only living grandparent, I have a right to help raise these children. They need me, particularly since their father cares more about drinking than he cares about his family.” Fabian believes, “Parents have the right to make decisions for their children, including who they see and who they don’t see.” For this role- play, Marta will use a narrative approach, first listening to Fabian and Lucille’s stories, then helping them deconstruct the problems and constricting aspects of their stories. Marta will then help them construct a more positive story to help them manage their current conflict.

Debriefing : What key themes emerged from Fabian and Lucille’s original stories? How did these themes affect the way they handled the conflict over Lucille’s rights and roles with her grand- children? What did the mediator do to help them construct a story that facilitated better collabo- ration or conflict resolution?

ROLE- PL AY 8.4: “PARENT- YOUTH CONFLICT”— THERAPEUTIC STRATEGIES

Garrison Penobscot is a 15- year- old who was kicked out of his parents’ home when they found out he is gay. Mr. and Mrs. Penobscot view homosexuality as a sin. Mr. Penobscot serves as deacon in the Conflictia Presbyterian Church, so Garrison’s revelation that he is gay was particularly challenging for Mr. Penobscot. Garrison is living with an older male friend. Child Protective Services (CPS) intervened when Garrison’s teacher reported he was not attending school and his parents were not taking responsibility for him. CPS referred the case to Maxine to mediate a resolution that safeguards Garrison’s physical, psy- chological, and social well- being. For this role- play, Maxine will meet jointly with Garrison, Mr. Penobscott, and Mrs. Penobscott. Maxine should select two or three strategies from one of the four therapeutic models described in this chapter (e.g., presuppositional questions and strategic questions from family systems; or looking for exceptions and the miracle question from SFT). During the role- play, the mediator should try to incorporate these strategies as part of the mediation process. For further information on coming- out conflicts and media- tion with lesbian, gay, bisexual, and transgender (LGBT) clients, see Etengoff and Daiute (2013) or Moscatti (2015).

Debriefing : What exactly did the mediator say to incorporate the specific therapeutic strate- gies? What was the effect of using these strategies on the ability of the parties to deal with their conflict? To be effective as a mediator, what type of information did Maxine need to know about the child protection system?

MAJOR ASSIGNMENTS

Choose one of the following two cases for your major assignment. The first case involves a conflict between siblings over their recently deceased parents’ estate. The second case involves a conflict over child custody and access in a divorce situation.

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Assignment 8A: Messy Estate Dispute (The MED Case)

The three roles to choose from are Suzie, Selma, and Mona. Mona will play the media- tor. If any of the role- play participants is male, he could be Sheldon, Simon, or Malcolm. Suzie (age 38) and Selma (age 41) are siblings. Their parents died 5 months ago, leav- ing them shocked, angry, and saddened. The sisters have not gotten along very well for years, dating back to their envy and competitiveness in high school days. However, they somehow managed to act “good” in front of their parents. Relations have soured further given their reaction to the loss of their parents and the present task of how to divide their parents’ estate. Neither parent had a valid will. Selma and Suzie are the only chil- dren, and (now that Selma has paid the parents’ bills) no other parties are making claims in the estate.

The main assets include a joint bank account with $25,000; life insurance and pension benefits worth $50,000; a condominium (purchased 5 years ago for $280,000 with an out- standing mortgage of $190,000; present market value unknown); Mom’s diamond engage- ment ring; two wedding rings; a gold bracelet; Grandma’s brooch (low monetary value, but sentimental to both); six photograph albums; a china set (serves 12); furniture (bedroom/ living room/ dining room); 150,000 frequent flyer miles; and a 2011 Mazda (which neither daughter wants because of car repair needs). Mortgage and maintenance fees on the condo total about $2,500 per month. Selma is the more financially secure of the two women and has threatened to take Suzie to court (mostly out of spite). Suzie works part- time and rents an apartment; she would like to move into the condo to save money. Besides, the market value is currently depressed because of the recession in Conflictia. Suzie believes it would be best to wait before selling. Selma thinks that Suzie is already living in the condo and that she has started to sell various pieces of furniture.

Both Selma and Suzie have independent legal advice; the lawyers referred them to mediation to try to work out a memorandum of understanding. If and when the issues are resolved, the lawyers will draft the final agreement. Selma and Suzie have agreed to try to work things out with Mona, a family mediator recommended by one of Selma’s friends.

Suzie’s Confidential Facts Suzie is not sure she can trust Mona, the mediator. Mona seemed to know Selma from before. Suzie is worried that Mona and Selma are good friends. Suzie does not want to make any accusations, because her lawyer said she should try to make a good impression with the mediator. Suzie has trouble understanding the “Agreement to Mediate” form that her lawyer gave her.

Suzie is not very knowledgeable about real estate values or investments. Her parents used to help her budget and told her what to do with her money. Suzie was quite depen- dent on them, emotionally as well as for concrete support and advice. When she found out her parents were killed in a car crash, she was devastated. Suzie is not living in her par- ents’ condo. She has mixed emotions about doing so. On the one hand, she could save rent money. On the other hand, she would be living with a constant reminder of her parents and their recent tragedy.

Suzie can be accommodating, but she becomes very competitive when backed into a corner. She might even start to decompensate or regress into childish name- calling if she feels threatened. Suzie may be willing to compromise on certain monetary items in her parents’ estate, but if there’s one thing that she wants— whether through litigation or through mediation or whatever— it’s Grandma’s brooch. Grandma promised it to her when she was 12. Suzie wants to be treated fairly but has trouble articulating what fairness means.

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Selma’s Confidential Facts Selma is the older, wiser, and stronger sibling. She has mixed emotions about dividing her parents’ estate. On the one hand, her parents always told her to take care of Suzie; on the other hand, she hated that. Moreover, Selma is still in shock about her parents’ sudden death in a car accident. She was supposed to meet them earlier that day. She still feels guilt- ridden for backing out at the last minute.

Selma may approach mediation in a “tit- for- tat” manner, willing to trade off one item for another. However, if Suzie rubs her the wrong way, Selma will shoot back. There are some items that Selma must have: the entire china set, the diamond engagement ring, the frequent flyer miles, and Grandma’s brooch (which she promised Selma when she was 14). She does not think that Suzie should get anything of value, since she is not good with money. Selma believes Suzie is likely to lose any investments and sell family heirlooms to pay for her day- to- day needs. She spoke to the superintendent at her parents’ condo. He thought that Suzie had already emptied out most of the furniture.

Selma wants to get things settled in one session. She is quite willing to go to court. She is only mediating because her lawyer strongly suggested it. She has difficulty maintaining attention for long periods. She may get up once in a while to wander around. Selma has never participated in mediation before. She finds that Mona can sometimes be “too nice.”

Mona’s Confidential Facts (Mediator) The only case facts that you have are the common facts identified at the beginning of this section. You may want to meet with another person in your class who is role- playing the mediator, to help you prepare and plan your approach to mediation. Also, review the phases of mediation from the introduction to Module III. Brainstorm issues that you might expect the parties to raise. Identify theories and strategies that will help you deal with them.

Assignment 8B: Separation Anxiety Case

The three roles for this case are Hartley, Willow, and Malala (the mediator). Hartley (age 38) and Willow (age 40) have been living together as common law husband and wife for 14 years. Willow is employed as an elementary school teacher, earning $58,000 per year. Hartley works as an electrician. He earns $87,000 per year. They have an 8- year- old daughter, Destinee, and a 14- year- old son, Stefan. Although they had a relatively happy life together, Willow has been feeling a gap in her life. She recently started to reconnect with her religious roots by attending services at the local temple of the Church of Jesus Christ of Latter- day Saints.15 Hartley was born and raised as an atheist. Although Willow was born into the Mormon faith, she left the community as a young adult when she went to teaching college and met Hartley. Now that she is returning to her faith, she wants Hartley and the children to follow in her tradition. Hartley decided it was time to separate when Willow started talking about “getting married and raising our children in a proper religious home.” Neither parent has an attorney. They opted for mediation because they wanted to settle matters without going to court. Still, their relations are quite acrimonious. Willow has hinted that Hartley is emotionally abusive. Hartley refers to Willow as “that flakey wing- nut.” Willow has been trying to keep the children away from Hartley, fearing that he is a bad influence and may try to alienate the children from her. They have sought the services of Malala, a mediator with the Conflictia Family Mediation Center. They have asked Malala to assist with child custody, visitation, and child support. They say they can work out spousal

15 The group could agree to provide Willow with a different faith background.

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support and division or property on their own. Willow plans to relocate to Springfield, 450 miles away, so she can pursue a graduate degree in special education. The children have been living with Willow. Hartley insists that the children need to stay him if Willow moves away. The following confidential facts are for the parents and mediator. If the group wants to include children in the mediation process, then they will need to develop additional facts for Destinee and Stefan (for information on family laws and issues in relocation cases, see P. Parkinson & Cashmore, 2015).

Willow’s Confidential Facts Willow feels very confused and anxious. Although she feels a strong pull toward her Mormon faith, she also feels her movement toward this faith is tearing the family apart. She has sought help from elders from her community and well as from her parents. They tell her to follow her heart, but her heart is in two different places, with her family and with her religion. Willow does not see a way to reconcile these parts of her life. Although she feels very uncertain about what to do, she does not share her uncertainty with Hartley. She feels that she needs to show him that she is strong, certain, and confident. Willow feels hurt when Hartley disrespects her religious beliefs. She sometimes lashes back by calling him “godless” and speaking in condescending tones about his hedonistic lifestyle.

Willow understands that her children benefit from a close relationship with both par- ents. She does not want to separate them from their father, at least their old father who was compassionate, caring, and compromising. Now, she sees Hartley as distant, angry, and rigid. Willow’s main reason for wanting to go to Springfield is to advance her education and help her gain a better paying job. She also sees this as an opportunity to start life anew and gain some distance from Hartley. Willow says that it is not good for the children to see their parents fight, so it is better for the parents to live in different places. Willow’s parents live near Springfield, so that also provides Willow and the children with a source of support.

Willow is very anxious about the mediation process. She knows that the welfare of her beloved children depends on reaching a good outcome in mediation. Willow sees Destinee as a fragile flower who needs lots of nurturing and protection. Destinee was born prema- turely and has always been prone to getting sick. Willow sees Stefan as a bear: big, bold, and tough. Stefan has always excelled in sports and has been very independent. Willow believes that Springfield is a much better environment for both children, having smaller schools, fewer criminal elements, and a strong Mormon community. Willow believes that she should have sole legal custody of the children, as well as primary residence. She says the children can spend one weekend per month with Hartley, as well as 2 weeks of sum- mer vacation. Because Hartley is atheist, he does not need to see the children for religious holidays. However, he should be able to see the children around their birthdays and Father’s Day. As part of any agreement, Willow insists that Hartley is not allowed to have any unre- lated women sleep over at his house while the children are there. Willow wants the children to start respecting the institution of marriage.

In terms of child support, Willow wants Hartley to pay what is required under the state’s child support guidelines. She also wants him to pay an additional $9,000 per year for a sum- mer camp that is offered through her church.

Hartley’s Confidential Facts Hartley thinks Willow has had an emotional breakdown and is searching for some sort of comfort in religion. He speculates that she feels guilty about leaving her religion and that she wants to make things up to her parents before they pass on. Hartley believes that Willow may have a depressive disorder and could benefit from mental health counseling. He is con- cerned that she is making poor decisions, including wanting to move to Springfield. Hartley

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realizes that if the case went to court, the court would likely award custody to Willow. Still, if the case were headed to court, he would insist on a full custody evaluation, including a mental health diagnosis for Willow. Hartley has been very anxious since the separation. He has had trouble sleeping and difficulty focusing at work. His parents separated when he was 12 and he hates the thought of putting his children through a similar separation process. Given his parent’s high- conflict divorce, he decided that he never wanted to marry.

Hartley sees Willow as an overprotective mother. Although Destinee was born pre- maturely and has had some medical risks as a result, Willow has turned Destinee into a hypochondriac. “Willow is constantly taking Destinee to the doctor for one fake illness or another.” Hartley sees himself as serving a stabilizing role in the children’s life. He is scared that both children will suffer if they have to live full time with Willow in another city. Hartley has talked to both children about where they want to live when their mom moves to Springfield. Both say they want to live with him. They do not want to leave their friends, their schools, or their father. Stefan loves sports and has great, lifelong friends on his lacrosse and rugby teams. Hartley also has a very close bond with Destinee, both shar- ing a love of art and building things with their hands. Hartley believes that the children should live primarily with him, but he is willing to have joint legal custody. He says the children “must be raised atheist until they are 18,” as that is what the Hartley and Willow agreed when they started living together. Hartley does not want Willow interfering with his life, telling him what religion to follow, messing up the kids, or compromising his time with them. He hints that he is willing to forgo child support if Willow allows the children to live with him. Hartley says he would permit Willow to see the children anytime she comes to the city, but that they could only go to Springfield for special holidays and 2 weeks of summer vacation. Hartley does not think that he should be responsible for schlepping the children back and forth to Springfield. “The children need stability. Of the two parents, I’m certainly the stable one!”

Although Hartley is not intentionally trying to alienate the children from their mother, he often tells them negative stories about her. He makes fun of her faith, he questions her ability to make decisions, and he warns the children not to spend too much time with her or they will be “infected by her strange and curious ways.”

Malala’s Confidential Facts In preparation for mediation, identify one model of mediation that you want to practice (e.g., therapeutic, transformative). Given this model, how you will define whether media- tion is a success? Identify specific mediation phases and strategies that you want to focus on. Decide what premediation processes may be helpful in assessing and preparing the cli- ents for mediation. You may also want to familiarize yourself with your state’s laws pertain- ing to custody, visitation, and child support. One of the main conflicts concerns where the children are going to live, particularly since Willow is planning to relocate. Consider every- one’s underlying interests and creative ways in which you may be able to help the parties resolve these interests.

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