Chapter eight family Mediation and a therapeutic Approach
Chapter eight 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 families, 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. While other models of mediation may be used with families, therapeutic mediation deals with particular family dynamics, including the strengths, vulnerabilities,
roles, rules, norms, transitional challenges, and interactive nature of families. Whereas a settlement-focused approach emphasizes legal rights and responsibilities of family members, for instance, a TpM focuses on their wishes, needs, roles, and functions as family members. TpM addresses psychological, emotional, and relational issues in order to improve interactions and family functioning. 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. In other words, therapeutic mediators help families manage the turbulence of change, nourishing and relaunching relationships beyond their ruptures instigated by separation. TpM shares certain strategies with transformative mediation; for instance, both approaches allow for storytelling, validation, relationship healing, and empowering clients to make their own decisions. Therapeutic mediators also use a number of strategies that extend beyond the transformative model: assessing clients, providing individual sessions to help clients address underlying emotional and psychological issues that are affecting 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 mediation process. Therapeutic mediators believe that clients would replicate dysfunctional patterns or communication if mediators simply allow them to determine how to interact during mediation. Therapeutic mediators acknowledge their influence on clients, including the mediation process and their decisions. 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 reconstructing their lives.
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 children, 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, frustration, 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, family counseling, or mental health. They possess the training, knowledge, and skills to apply specialized therapeutic techniques in a competent manner. 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. Proponents of TpM suggest therapeutic mediators provide mediation in a therapeutic manner, but do not cross the boundary into providing therapy. The main critique of this approach is that the blending of roles may be confusing to clients. 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 therapeutic 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 co-mediate 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. 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
CONTEXTS FOR FAMILY MEDIATION
Mediation has been shown to be helpful in a range of family conflict situations, including 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 as 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. It can also help families renegotiate their roles and relationships within the family as these transitions occur. Note that a divorced family is still a family, even though the rules, roles, and relationships may have changed.