Divorce Mediation

Perspectives on the Field

Craig Everett

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317941606
• Edition: 1
• Topic: Medicine
• Subtopic: Medical Theory, Practice & Reference

Here is an excellent introduction to and overview of the field of divorce mediation, a field that has grown rapidly and achieved a remarkable level of recognition among both the clinical and legal professions in the last decade. Divorce Mediation describes the process and some of the techniques of mediation, as well as mediation theory and training. Authorities from marriage and family therapy and law--all practicing mediators--address the ability of women to negotiate for themselves in mediation, describe several approaches to handling custody issues, and discuss several challenging issues facing the profession, including who should practice mediation, what are the boundaries and ethics of practice, and how does mediation relate to the traditional disciplines of law, psychology, marriage and family therapy, and social work. Summaries of actual case studies are especially helpful in illustrating how mediators accomplish their negotiations.

The Power of Including Children in Custody Mediation

Robin Drapkin
Florence Bienenfeld

ABSTRACT. In approximately 10 percent of divorce cases, parents litigate child custody and/or visitation issues (H. McIsaac, personal communication, May 1983). The children involved often feel pressured by competing parents. Including children in the mediation process has a powerful impact on both parents and children. Children are afforded the opportunity to communicate their concerns and feelings with an understanding person. They tend to leave less anxious and burdened. Many parents become more willing to focus on their children’s needs and on their new parental roles rather than on past hurts and disappointments. Often the greatest need of the novice child custody mediator is learning techniques of interviewing children. This article provides mediators with methods for involving children that can enhance the effectiveness of mediation.

California Civil Code Section 4607 provides that “the mediator shall have the duty to assess the needs and interests of the child or children involved in the controversy and shall be entitled to interview the child or children when the mediator deems such interview appropriate or necessary.” There are two important elements in this section. One is that the mediator has a function and responsibility to determine the child’s needs. Then the statute permits the mediator to see the child in making such determinations. The question is whether the mediator can adequately assist parents in custody planning without the child.

It is never superfluous to include children in the mediation process. The child’s involvement always has a function. Any proposition that the participation of children in the mediation process is superfluous assumes that divorcing parents are able to take into consideration their child’s specific needs. It also assumes that both parents actively participate in the negotiating process. It ignores clinical evidence that divorcing parents have difficulty separating their own needs from the needs of their children (Wallerstein & Kelly, 1980). It ignores research evidence (Little, 1983) that in half the families who present for mediation, the parents disagree as to what their children need.

In non-confidentiality jurisdictions where the mediator renders custody recommendations directly to the court, there is particular benefit to including the child. Civil Code Section 4600 requires that the court consider a child’s preference. In considering the preference, the court must assess the child’s “capacity to reason so as to form an intelligent preference.” As many judges are reluctant to interview children¹ the mediator sees the child at the potentially less emotionally destructive mediation stage of the proceedings rather than relegating this responsibility to the court at the litigation stage.

There are only two situations in which children need not be included in the mediation process. One occurs when both parents describe their child’s needs similarly and have parallel ideas as to what type of plan is best suited to their child. These parents generally are the exception in court-ordered mediation cases. The other case is children under three years of age. Children this young usually are developmentally unable to communicate verbalizations with their play actions. Young children frequently are viewed as “uninterviewable” because of their inability to carry on adult-like conversations. Mediators are not surprised anymore by the useful information that can be obtained from children as young as three. Because the mediator approaches the task by asking, “What can I learn about this child?” rather than “What answers can I get to my questions?”, there really need be no age minimum above three. Information may be elicited through the use of symbolic techniques such as those presented later in this paper.

Including the child serves several purposes. The mediator acts as a non-aligned confidant at a time when the child is experiencing “diminished emotional support” and “increased need for adult help” (Wallerstein, 1980b). By the time families are referred for custody mediation, most children have been involved in some way in the parental conflict. Many children feel pressured to take sides. Because relatives and friends tend to side with one parent or the other, the mediator may be the only non-aligned person the child encounters. Many children do not disclose their real feelings to parents either out of fear of hurting them or of receiving their anger. Children of divorce usually tell parents what they want to hear instead of what they need. Whereas on the surface it may seem anxiety-raising for the child to be brought to the mediator, children usually are relieved to have a warm, understanding contact at a time when their parents tend to be absorbed with their own neediness. Excluding the child from this process reinforces the feeling that no one understands or that no one cares to understand. The child’s contact with the mediator is an event of considerable emotional significance to the child. If the child is to be seen for therapy, his subsequent relationship with the therapist will be influenced by the impression created at the mediator’s office.

By including the child’s perspective, the mediator serves to reinforce and maintain the parenting focus of mediation. This is particularly essential when the parents’ abilities to perceive and discuss their child’s needs tend to be shadowed by their inclination to focus on their own past hurts and disappointments. The mediator needs to be wary of parents who are obviously enmeshed in bitter conflict yet who claim their child is “doing just fine.” When the level of parental hostility is high, the mediator should be surprised to hear that “Johnny is very happy.” It is imperative that the Johnnys in these families be seen. One such Johnny gravely told the mediator, “I’m thinking of jumping off the roof of the house.” Screening for further assessment, therefore, is an important function of seeing the child at the mediation stage of the legal proceedings.

The mediator’s first-hand access to the child enables the mediator to educate parents about their child’s specific needs rather than being limited to global remarks about general knowledge about the impact of divorce on children. Such specific feedback to the parents has the potential for minimizing the child’s anguish. The frustration, for example, behind a child’s “I don’t like it when I have to keep telling my mommy to dress me in the clothes Daddy gave me, or Daddy will be angry when I go back” can be used to help the parents discuss parameters for exchanging items of importance to the child.

Through direct contact with the child, the mediator gleans useful information to assist parents in working out the details of a living structure. The 4-year old’s question, “Why does Daddy pick me up and bring me right back the next day—Did I do something bad?” reveals the child’s important feelings about the length of custody periods with father.

Parental discord is the single most important cause of childhood depression (McDermott, 1978). Some children tend to hide their feelings and carry their disappointment and anger into adulthood. Many serious problems can be averted if parents can be given a satisfactory experience of mutual problem-solving. The mediator uses the contact with the child not only to assist parents in focusing on their child’s needs, but also to promote parental communication so as to minimize potential problems for their child. Upon hearing what their child really feels, previously uncompromising parents are apt to become more willing to set aside their hurt and anger and work out a cooperative parenting plan that is consistent with their child’s needs.

Preparing the Child for Mediation

A straightforward approach so as not to deceive the child is best. It is critical that the mediator prepare parents to orient their child to the purpose of the meeting. Parents often unwittingly deceive their child about the purpose of the session. Some children are told they are going to see the doctor (thus the young child fears a “shot”). Some children are told that the parent is going to court to pay a traffic ticket. Others are told nothing. Children tend to be apprehensive about the courthouse. Young children often fear they will be made to say bad things about Mommy and Daddy. Some children worry they will have to take the witness stand and reveal themselves to news reporters; or they worry about being tape-recorded. One of the hallmarks of childhood is that when stressed, children often forget or deny; these are two ways of dealing with painful conflict. Therefore, the mediator should not assume any understanding on the child’s part as to why he or she is there.

In order to prepare the child, parents first need to acknowledge with their child what is happening in the family. Children should be provided with a reasonable amount of information about the divorce geared to the child’s capacity to understand. Telling the child about the divorce begins the process of the child’s integrating the changes in his or her life.

With young children under age six, parents can tell their child: “You know that your daddy (mommy) and I argue (fight) too much. We are going to talk to a helper who wants to meet you too.”

With older children, parents can explain: “You know that your mother (father) and I haven’t been getting along. We’re sorry we can’t stay together, but we have too many disagreements. We’re going to meet with a counselor who can help us make some decisions about when each of us takes care of you and how we can make things easier for you.” Parents should be encouraged to use their own words in communicating these ideas to their child.

It is particularly important to talk to teenagers to incorporate their needs into the custody plan. Wallerstein (1980b) found that adolescent vulnerability tended to be overlooked by parents. Approximately one-third of the adolescents in her study appeared more troubled one year after the divorce than they had been at the time of the parental separation. Parents should tell their teenager that they will try to make the custody decisions together, with the counselor’s help. Parents can explain to teenagers that the counselor wants to hear their feelings about the family situation, but that they will not be making the decision.

All children should be told that if the parents do not make the decisions for the family, the judge will make the decisions for them. Later, the mediator can explain to the child what to expect if the parents are to proceed to litigation (e.g., talking with the judge).

What Can be Learned From Observations?

There are many ways to learn about a child. Thinking only in terms of “How should children be interviewed?” or “What questions should be asked?” limits the mediator greatly. A paradox of human communication is that questions sometimes are the worst way to gather information: “The unwitting use of many questions may create an impact you don’t want, produce answers you don’t need, and distract the (child from any spontaneous expression of feelings)” (Goodman, 1978, p. 14). Asking a barrage of questions turns the spotlight on the child and breaks up painful silences. To predominate the session with numerous questions can serve to make a child feel interrogated or cross-examined. Asking many questions means making numerous small demands that can add up to a demanding conversation from the child’s perspective (Goodman, 1978).

Instead of thinking in terms of questions to ask children, the mediator can think in terms of what can be learned about the child from what the child does and reveals spontaneously. The waiting room often provides useful information about the child’s physical integrity. Does the child have any observable developmental disabilities? Children with certain disabilities may be slow to process information, including coping with scheduling changes or frequent transitions between parental homes. What about the child’s temperament? Does he immediately get up to go with you before you introduce yourself? He may be an active child who doesn’t wait for things to happen. Or is the child shy, clinging, or slow to adapt to someone new? What the child does in the first few minutes reveals something about how he or she probably deals with frightening or new experiences. If anxious, can the child reorganize himself or tolerate anxiety? If the child is initially silent, the mediator may briefly wait to see if the child can initiate something on his own. A child who can tolerate some anxiety or reorganize it may be a better candidate for certain forms of joint physical custody than a child who cannot.

What can be observed about the child’s interactions with the parents? Is the child engaged in conversation or play with a parent, sibling, or stranger? Does the child initiate any activity with one or the other parent? Does the child greet a parent with hugs and kisses or with avoidance and withdrawal? How the parents handle separation and how the child responds also provide salient information. Are the parents warm, critical, detached, or understanding in the way they talk to their child? Observational hunches about the child should be confirmed by other information from both parents and child.

What Can be Learned From Parents?

The mediator’s function is to help parents develop a parenting plan that allocates time between parents and that can meet their children’s needs, given their particular ages and unique development. Temperament has been suggested as an important variable (Clingempeel & Repucci, 1982). Temperamentally difficult children—those who are highly rigid or fastidious—tend to be more vulnerable to a number of life changes and stressors (Rutter, 1979). Other research more specifically has indicated that children who had the most difficulty adjusting to divorce were those described by their mothers as having been difficult infants (Hetherington, Cox, & Cox, 1978). “Temperamentally difficult” children may do more poorly with significant time in both parental homes. Whereas such a plan may reduce a sense of parental loss, extensive alternations between homes might be too unsettling. Ideas about both the frequency and duration of alternations need to be explored with parents.

Parents need to be encouraged to talk about their child’s adaptability. Is the child keen to explore, or does he tend to hang back? Is he easy or slow to make friendships? What about regularity of functions: Does the child eat well and sleep well? Is he slow to fall asleep or slow to awaken? What about the child’s manner of expressing emotions: When upset, does he tell the parent or does he hide it? Does the child have particular recurring worries or fears? How does the child tolerate and express anxiety?

When encouraged, parents often provide useful information about how their child handles disruptions and separations from examples of what happened when the child started preschool or daycare. Length of separations from significant caregivers, and how the child has reacted upon reunion with them, also provide important input to custody planning. Some children exhibit frequent separation or anxiety fears of parents dying or never returning. Usually these are indicators that the child’s sense of security is vulnerable. By the end of the fourth year of life, most children carry an internal “sense” of the primary caregiver, even in that parent’s physical absence, and are easily able to separate from that parent.

Approaching the Child

Children involved in custody disputes are usually under a great deal of stress. Many have already been asked by parents to choose where they want to live. Although the mediator’s approach varies according to individual style, the idea is to provide a nonthreatening setting and to set the child at ease as much as possible.

Children can be escorted from the waiting room to the mediator’s office by the mediator; or the ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• Reflections on the Growth and Significance of Divorce Mediation
• Through an Interdisciplinary Mirror: Attorney-Therapist Similarities
• The Present and Future Role of Higher Education in Divorce Mediation: Problems and Promise in Teaching, Research, and Service
• Adjudication and Mediation: A Comparison of Custody Decision-Making Processes Involving Third Parties
• Mediator’s Notebook: Reflections on Promoting Equal Empowerment and Entitlements for Women
• The Power of Including Children in Custody Mediation
• Family Mediation: A Descriptive Case Study
• Technology and Mediator Training: Using Videotaping for Experiential Learning
• Joint Custody Reconsidered: Systemic Criteria for Mediation
• The Effect of Cooperation on Egocentrism in Divorce Mediation: A Simulation Study
• Improving Communication in Divorce Mediation
• The Attorney as Mediator: Handling Dual Representation of Marrying and Divorcing Couples
• Mediation: A Method of Law and Psychology in the Netherlands