In part 2 of this blog series, Hilary Linton focuses on the risks of mediation and why a “practical” set of ethical guidelines is needed for family mediators
The Risk of Mediation
In order to truly resolve our conflicts we must move towards them. This is inherently “dangerous” in the sense that it can cause the conflict to escalate. If mediation promises honest communication, that presents a danger that the listener will hear something he or she does not like. Every authentic communication, the kind we promise in mediation, requires openness, honesty and vulnerability. This means risking more pain and disappointment. The outcome is unpredictable and risky. If mediation promises the opportunity for transformation, change of that nature is difficult to anticipate and predict. Even the most dysfunctional ruts seem safer than doing something different which could result in change.[6] According to Kenneth Cloke in his book “Mediating Dangerously”:
“As mediators, we need to be willing to bring a deep, dangerous level of honesty and empathy to the dispute resolution process. Otherwise, we become characters in other people’s scripts, rationalizing their torments, fears and avoidance. As mediators, we need to avoid producing agreements that do not resolve conflicts, but merely suppress, silence or settle them, that result not in growth, but in reluctant acquiescence and enduring discord.”[7]
Cloke’s beliefs are particularly true of comprehensive family mediation, and they help understand why competent and ethical mediation of such disputes is necessarily “dangerous”. It is not strictly “evaluative” mediation, which regards conflict as something to be ended, with the mediator directing the parties toward a settlement that need not come to grips with the underlying issues that gave rise to the conflict. Nor is it strictly “facilitative” mediation, which views conflict as something to be overcome, with the parties doing so by active listening and describing their feelings. And it is not even strictly “transformative” mediation, which views conflict as something to be learned from but the role of the mediator does not include suggesting solutions or directing the parties toward resolution.
The role of the comprehensive family mediator should be to elicit, conciliate and facilitate but also, when appropriate, to evaluate and direct parties in seeking resolution or transformation. It is therefore something of a hybrid of all three other approaches.
Why a “practical” set of ethical guidelines for comprehensive family mediators?
What is it about comprehensive family mediation that makes it a candidate for a practical set of ethical rules? In short, it is the unique vulnerability of the parties to the mediation and of those directly affected by it, their children. They are emotionally vulnerable; they
are going through a process of grieving akin to those coping with the death of a loved one. They are somewhere along a very slow and steep learning curve, experiencing a painful personal transformation (if they possess sufficient insight) that will prevent them from making the same mistakes again.[8]
Research shows that there is a good chance of a history of physical and/or emotional abuse between separating couples.[9] And given the emotional intensity and complexity of the breakdown of the marriage and ensuing separation, they are certain to be faced with a negotiating partner who can be bitter and vengeful, fearful, guilty, resentful, unrealistic, demanding, dismissive, manipulative, bullying, dishonest and non-cooperative, depressed, anxious or impatient on any given day.
They are financially vulnerable, being somewhere in the process of realizing that there is not as much money when two households are being supported. Often at least one spouse is trying to upgrade skills or change employment or entering the work force for the first time. The personal and financial change can be overwhelming.
They are often trying to cope with the grief and distress and change and volatile emotions their children are experiencing, along with all the changes their children must endure.[10] They may be depressed, feeling guilt, anger or blame.
And they are legally vulnerable. They know that they are caught in a web of complex, sometimes unfair legal rules which are hard to avoid and harder to understand, even with the help of expensive legal advice. They know that some of the law cannot be avoided (for example, the child support guidelines) and often feel powerless and without clear
direction in assessing their needs in the context of the law. Rightly or wrongly, they tend to want and need to depend on the mediator for some amount of legal guidance.
The unique vulnerabilities of the parties extend to the beneficiaries of the process; the children. Rarely are they present or represented in mediation, and yet their interests form the subject matter of much of the mediation process.
These vulnerabilities are enhanced by the often aggravated state of escalation of the dispute by the time the parties reach mediation. The symptoms of enhanced escalation are almost always present in whole or in part either at the outset or early on in the mediation process; a proliferation of issues, a change in focus of criticism from behaviour to
character, a shift in tactics from light to heavy, a change in motivation from seeking fairness to seeking vindication and revenge, and the increased involvement of third parties, particularly family members.[11] Psychologically, the parties will escalate the conflict until they reach a point of stalemate; at this point the parties are in a transition from a determination to beat each other to the grudging understanding that it may be possible and even desirable to try to get what one wants through collaboration. Noted author on the subject of the psychology of conflict, Jeffrey Rubin, writes that third party interventions work well both before and after this point, but tend to be disastrous at the point of stalemate.[12]
According to Rubin’s theory, the conflict can be de-escalated and reduced at stalemate by bringing the parties into greater contact with each other, working on communication skills and building momentum towards goals that transcend the conflict. But to do so well, in a way that resolves the conflict instead of just papering over the deal made in
resignation by two emotionally exhausted people, requires a clear-headed and unique ethical orientation.
Because of their unique vulnerabilities, parties going through comprehensive family mediation will present mediators with unique and important challenges. If establishing a consistent and meaningful ethical standard for such mediation is the goal, something more than the bland, non-directive and non-particular codes of ethics now in existence is called for.
Excerpt from: Linton, Hilary. “Practical Guidelines for Comprehensive Family Mediation.” (2003): 1-17.
[6] “The only way to escape the gravitational tug of a conflict to which we have grown accustomed, even addicted, is by honestly and energetically confronting the reasons we got into it, that kept us in it, that allowed us to accommodate and adapt to it. When we realize that we have gotten lost by engaging in it, and what will happen if we remain trapped in it, we quickly discover which is the greater danger”, Kenneth Cloke, Mediating Dangerously (San Francisco, Jossey-Bass: 2001), p.5.
[7] ibid
[8] John Gottman describes the stages of deterioration in a troubled marriage, and how and why partners fall into destructive patterns in response to each other, in Why Marriages Succeed or Fail (New York: Fireside, 1994).
[9] For detailed research on the subject of separation and abuse, see Rhonda Freeman, “Parenting After Divorce: Using Research to Inform Decision-Making About Children”, (1998) 15 Can. J.Fam.Law 79-129;
Jennifer Maxwell, “Mandatory Mediation of Custody in the Face of Domestic Violence: Suggestions for Courts and Mediators”(1999), 37 Fam.& Concil.Cts.Rev 335; Desmond Ellis & Noreen Stuckless,
Mediating and Negotiating Marital Conflicts (Thousand Oaks: Sager Publications, 1996), ch. 4,5 &6; and Goundry, Peters, Currie et al, Family Mediation in Canada: Implications for Women’s Equality (Ottawa: Status of Women Canada, 1998).
[10] Judith Wallerstein’s The Unexpected Legacy of Divorce: A 25 Year Landmark Study (New York: Hyperion, 2000) is an excellent analysis of the short and long-term impact of divorce on children.
[11] Jeffrey Rubin, “Conflict From a Psychological Perspective”, in Hall L. ed., Negotiation Strategies for Mutual Gain (Thousand Oaks: Sage Publications, 1993) p. 125-127
[12] ibid, p.133.
