Family Mediation & Conflict Resolution

Family Mediation and Conflict Resolution Case Study Fall 2020




  • You are expected to complete the take home exam on your own. Plagiarism will not be tolerated.
  • Your exam should be approximately 5-6 pages in length with 12 point, double spaced, using New Times Roman font and regular page formatting, minimum 6 in-text citations. Please use APA formatting and include a reference page.
  • Be mindful of grammar and use full sentence format and no bullets within your exam.
  • Submit your case study
  • The case study exam is out of 50 marks.
  • Answer either Case #1, or Case #2.




Choose one case study from the case studies listed below and provide a complete assessment identifying the major concerns of the case.

  • Use an appropriate theory to explain your assessment.
  • Using a mediation approach, outline and discuss the steps you will take if you were to mediate this case. Who are the participants in this case and why?
  • Apply interventions and skills related to the mediation approach you have chosen and provide examples.
  • Identify any aspects of the case that mediators should consider such as power imbalances, potential biases etc.
  • In reflection, discuss what aspects of the case would be difficult for you to deal with. How would you work through this difficulty as a mediator?



Case #1

Mrs. J is a widow at 62 and for several years she has battled advanced breast cancer. The metastasis is now widespread and there is little more curative care to offer from a medical perspective. She has 4 children, 2 live out of town, and the other two are within 20 minutes of her home.  She sees one daughter more than the others. Mrs. J has elected to enter hospice and she is comfortable with that choice. The issue is that her two children (son and daughter) that live out of town disagree with her choice; they feel she is giving up hope and that she needs to fight harder. The daughter that she has more contact with is the most religious and feels that God’s will, will be done regardless of whether she enters a hospice program or not. The other daughter is on the fence about what is best but leans more towards her mother’s wishes.   Mrs. J has not given up hope, but her hope has changed as her situation has changed. She is hoping for symptom control and time to say good-bye. Why isn’t that enough for her children?


Case #2

John (36) married Jane (29) with two children Alison (9) and Daniel (2 years old). Daniel was an unplanned pregnancy. The couple have been married 9 years and separated 10 months ago when John left to live with his girlfriend Stephanie and her one-year old child. John was described as overpowering and controlling.  Although she is hurt about the affair there is a sense of relief that he is gone.  9-year-old Alison was extremely upset about the separation and blamed it on her father’s cheating. There is limited contact between John and the children.  Jane is refusing to allow the children to come into contact with John’s girlfriend.   John visits with the children in his mother’s home when his mother or younger sister is available, otherwise he does not see the children.  Jane does not want John to be alone with the children as she does not trust him. Alison is not doing well in school and often complains of tummy aches, the teacher is concerned.  John wants the children half the time and states he plans on marrying Stephanie.  What could be happening in this family?


Reference: Taylor, A. (2010). The Handbook of Family Dispute Resolution: Mediation Theory and Practice. [VitalSource Bookshelf]. Retrieved from


Each one of them have their strengths and weakness and may lend themselves to managing different types of conflict.  Knowing and practicing a model or approach will help with developing assessment techniques, skills, and a toolbox of interventions.

Stage Theory Models

You will notice with each of the models of mediation a few key points. First, there is generally a rapport building phase with the disputing persons. In the context of conflict the level of trust of external parties might be minimal and they may question your ability to handle or navigate their problems. These models do not necessarily pin point how you are to establish a relationship or create trust so you will possibly have to identify your skills and tools to facilitate building a trusting and working relationship with the parties involved. Second, it is important to gather information and facts that are relevant to the issue at hand. This might include: family history to better understand some of the dynamics that might be at play, a timeline of events to identify and isolate current issues, and any existing documents that might provide clarity on currently expectations.  Although it is not your responsibility to investigate facts, keep in mind that there is a potential of lies from both sides about the facts.  It might be helpful to use tools such the genogram to assist in the collection of background information, facts, and family history. This tool can also help in establishing a timeline of the events. Third, there is point where you move the participants to a goal or plan of mediation. This will mostly likely take the majority of the time to firmly establish a plan that will be beneficial for all involved. The negotiation process can be difficult and complex in that you have to find a way to stay focused on the goals and outcomes of mediation. These models assume that you will transition from stage to stage and achieve each of them. However, these stage models are not flexible enough to account for and address some of the complex dynamics that will present themselves in mediation. Further, it is better to consider these models as a framework from which to guide the process to achieve the goals/plan for mediation.

Procedural Models

Similar to stage models there is a prescribed way in which the process of mediation will flow. Following a set of defined rules assumes there is a set of desired outcomes.  We will find that these procedural models do not work for everyone.  These models are more likely to work for families

  • Who have some common ground
  • Have calmness and self-control to handle the strict rules

It will not work for families who are:

  • Impulsive
  • Highly conflictual

Therapeutic Models

Therapeutic models are based on family therapy models often used in clinical practice. In this way the therapeutic model informs the way you might assess and intervene during mediation. Therapeutic models draw on background and training of family therapy. Individuals and families have to make personal and system changes in order for an agreement to last. Popular therapeutic models include Bowenian, Strategic, Structural, and Narrative Models. In a general sense these models describe the family system based on how the family is structured, the rules that are existing and functions of those interactions. The following are some terms that are related to each therapeutic model.

Bowenian Model

The following are a list of important terms used in the Bowenian model of therapy:

  • Differentiation of Self: the capacity to think and reflect, to not respond automatically to emotional pressures. This is the process of partially freeing oneself from the emotional chaos in one’s family
  • Emotional Triangles: the major influence of activity of triangles in anxiety; as anxiety increases the need for emotional closeness increases
  • Nuclear Family Process: deals with the emotional forces that operated of the years
  • Family Projection Process: parents transmit lack of differentiation onto their children eg. A husband who is cut off from parents and siblings relates distantly from his wife. His wife becomes anxiously attached to her children.
  • Multigenerational Transmission Process: the transmission of anxiety from generation to generation. In the second generation a person with less differentiation than their parents will marry someone with the same amount of differentiation and they create the emotional atmosphere for the family
  • Emotional Cutoff: usually is the way people manage undifferentiation; moving away geographically or emotionally

Strategic Model

The following are a list of important terms used in the Strategic model of therapy:

  • Human Communication: First- people are always communicating; Second- all messages have a report and command function. Family members’ behavior can only be understood within the family context.
  • Family rules: Prescribed rules for the boundaries of permissible behavior. The rules may not be verbalized but are understood by all family members; the rules regulate and help stabilize the family system.
  • First and Second Order Change: First change: change in behavior; Second change: change in family rules

Structural Model

One way to find balance between family and individual identity is to define and clarify the boundaries between the subsystems. Boundaries range from rigid to diffuse. The secret is in finding the right boundary that is balanced and well defined. Structural family therapy is directed toward changing the family organizational structure.

Narrative Model

In general narrative therapy uses language to help clients move away from a problem saturated story to create an alternative story. Therapist will often encourage clients to identify past experiences and events that are inconsistent with the problem saturated story so that the new story is less problem focused.  Some concepts associated with narrative therapy are:

  • People are not the problem, the problem is the problem: Diagnostic labels are viewed as just one of many ways to describe the client’s problem. They are used with caution as to avoid conjuring unhelpful understandings for the client (Biever, Gardner & Bobele, 1998). The focus of this step is to “objectify” the problem by giving it a label and characterizing it separate from the individual.
  • Mapping the influence of the problem: discuss the influences and consequences of the problem in all areas of the client’s life, including home, school, work, familial relationships, peer relationships, relationship with oneself, identity formation, and future possibilities.
  • Questions: Various types of questions are used to assist the client in generating a new story for themselves. Some examples of questions include: Deconstructive questions encourage clients to situate their narratives within larger systems and through time, Relative Influence questions are used to help clients separate their lives and relationships from the presenting problem, Story Development Questions – used in story construction, or re-authoring, story development questions invite clients to describe the process and details of an experience and connect it to a timeframe, context, or other person.
  • Unique Outcomes: use instances when the client’s goal or preferred way is occurring at some point in the present
  • Externalizing conversations: used to objectify the problem and help the client move away from their internalized understandings of the problem. By naming the problem and referring to the problem as a separate entity complete with its own lifestyle (White, 1986).
  • Measuring change: you want to find out what the client thinks about what the problem has been doing by asking questions like “Are these consequences okay with you?” “Is this preferable?”
  • Witnessing, recording, and celebrating the new story: sometimes clients are able share their stories with carefully chosen outsider witnesses. Somewhat similar to reflecting team practices, outsider witnesses engage one another in conversations about the client’s telling of their story.

Phases of Narrative

  1. Engaging with participants
  2. Revealing the conflict-saturated story
  3. Creating a new positive alternative story

Therapeutic Family Model

  • Developed by Irving & Benjamin (1995)
    • Takes 16-32 hours (longer than other earlier approaches)
    • 4 phases
  1. Assessment (readiness)
  2. Premediative (counselling & therapy)
  3. Negotiative (in-person joint mediation)
  4. Follow-up process (6 weeks after mediation)
  • Assessment Includes
    • Determining categories (1, 2, 3)
    • Assessing Parties in the following categories
  1. Postdivorce Spousal Functioning
  2. Parental Functioning
  3. Resources
  4. Ethnicity
  5. Interpersonal Context
  6. Court involvement
  7. Martial Status

Pre-mediative (Counselling/Therapy) are for the purposes of:

  • Accepting reality of dispute
  • Committing to mediation and stop being adversarial
  • Gaining knowledge and information that can be used during the negotiative phase
  • Working on communication skills
  • Assess and address safety issues (domestic violence, child abuse, etc.)
  • Increase openness to outside help (lawyers, mediators, etc.)

Negotiation Phase

  • Emphasizes mutuality versus adversarial process
  • Mediator assist parties make complex decisions

Follow Up

  • Occurs six weeks later
  • The goal is to monitor family functioning to prevent dysfunction


As noted in the text, approaches are general perspectives of how the work is to be done. They do not give step-by-step directions, but rather help participants connect with fundamental values and beliefs that will inform the outcome of mediation. So overall approaches, focus on changing the people not the problem (change attitudes not just behaviors). Through transformative mediation participants should learn how to communicate, and negotiate better in the future. Approaches look at the cause not the symptoms.

Folger and Bush suggest 10 concepts that guide mediation from transformative perspective explained in the text on page 132.

Transformative Approaches

  • Focus is on changing the people not the problems; change attitudes not just behaviours
  • Previous mediation models give the mediator too much power and influence
  • Through transformative mediation participants should learn how to communicate, and negotiate better in the future.
  • Look at the cause not the symptoms



10 Keys to Transformative Approach:

  1. Discuss with participants that goal is empowerment and recognition (not problem-solving)
  2. Participants are responsible for the outcome
  3. The participants know what’s best for them
  4. The participants have what it takes to successfully negotiate
  5. Allow and recognize feelings
  6. Accept and acknowledge confusion and uncertainty
  7. Be focused on the “here and now” – how participants are interacting in the moment
  8. Acknowledging the importance of the past
  9. Conflict can be long-term, and mediation is just one part of it
  10. Small steps in empowerment should be acknowledged and celebrated


Conflict is a normal part of family dynamics; however, at the point where families are in mediation there are often various levels of conflicts. To be able work through the conflict it is helpful to identify the level of conflicts and how the different levels interact to escalate the conflict. Once the complexity of the conflict is determined, other therapeutic resources may be helpful to assist in the mediation process.

Transformative Mediation Unit Clip






Models and approaches are not the same thing as styles, theory, training, skills and techniques, or methods of delivering interventions. Models are specific ways or methodologies for doing mediation that rest on two even more basic elements: the practitioner’s central core beliefs and the practitioner’s theoretical base, that is, the theories the mediator has adopted about abstract concepts, such as truth, fairness, and justice that provide meaning and consistency. Unlike theories, which can be proved or disproved, models are organized collections of thoughts that guide and inform and usually summarize the practitioner’s ideal or best practices. They explain how a practitioner should function. Each model is comprehensively organized in a definable way that makes it different from other models. Models tell us why, whereas methods, skills, and techniques tell us how to.

Taking an example from the field of medicine, allopathic medicine follows one model and methodology, while naturopathy, chiropractic, acupuncture, and holistic medicine are each a very different model of medical practice. Each one is based on a different set of beliefs and a different set of theories, and therefore each medical model operates very differently and has very different methods, skills, and interventions.

Lang and Taylor (2000) have this to say about models: Models represent appropriate, aspirational, or best practices; they include guide- lines for implementing them. Most novice mediators learn a particular model and approach to mediation that encompasses guidelines, rules, procedures, and ways of understanding mediation practice. . . .

Mediators who find their models inadequate to incomplete need to read more about other models and approaches, and to discuss the issue with other mediators to develop a more suitable and relevant model of practice. [p. 101] Approaches, on the other hand, are general perspectives and prescriptive ways of looking at the work being done. They are not as specific, and it is there- fore harder to measure whether a particular practitioner is functioning within that perspective. They often are more global and idealistic, and can be descriptive of several specific models simultaneously. A particular approach eventually may become solidified into a more comprehensive, named model of practice that embodies the principles in a more codified way.

This chapter explores the basic premises and models of family mediation that currently exist. Many of the models presented are fragmentary or partial, or have been developed as a trademark practice by a trainer or practitioner rather than as a demonstration of a model available for general use by any potential mediator. Sometimes practitioners who have been through a forty-hour basic family mediation training will not know what model or approach they actually learned. Although ACR has tried to help consumers and jurisdictions by creating standards for ACR-approved training, practitioners still need to understand the basic premises of justice, the role of the mediator, and the type of process that they are using and why. Family mediators can grow by understanding the range of current practice.

It is my belief that family mediators need to understand their own model fully before they can become artistic with it and realize that not all models fit all families and disputes or all practitioners. Practitioners need to evolve in their mediation approaches and refine and develop the models they are using to be better able to pass the information on to the next cohort of practitioners.


A label of stage theory model can be applied to types of mediation in which the mediation process is perceived as following a generalized flow from beginning to end. These theories posit that most family mediation sessions or events have a common or usual beginning, middle, and end and that each of these holds specific tasks and processes that need to be accomplished during that period of time, because they are sequential building blocks for future parts of the process. Like a road map that shows the embarkation and destination points with general descriptors between, these stage models help give beginning mediators a sense of what is expected and also how to achieve some standard preset goals that contribute to the overarching mediation effort.

The following statement could articulate the basic belief system underneath all stage theories: If the family mediator leads the participants through all the stages, without missing any, and if all the stages are done completely and correctly, then the participants will be successful in mediating an outcome. If any stage is missed, is not done completely enough, or is handled poorly by the mediator or the participants, then the likelihood of a successful completion is diminished. These stages are somewhat universal, descriptive of, and intrinsic to the mediation process itself. By knowing which stage the case is in, the mediator can effectively figure out where to go in leading the participants toward resolution. The assumption is that the mediator is the facilitator of these stages and acts as a leader and guide to the participants, ensuring that all tasks are done.

Stage theories were derived inductively and experientially. Practitioners who were being productive in family mediation tried to explain the processes they were doing to others by the inductive method, that is, by analyzing their successful cases and describing the patterns and the common features that had occurred. This de facto description of what they were doing then became prescriptive to other family mediators in subsequent training and writing.

Most of the stage model writers see the stages they describe as necessary, successive, and integrated. Although some of the writers indicate that there can be a return to earlier stages in a looping mechanism, the stage concept projects a linear movement from beginning to end. They believe that the stages follow a predictable course and that each stage is necessary for a complete family mediation.

Folberg and Taylor (1984) posited a seven-stage model of mediation:

  1. Introduction—creating trust and structure
  2. Fact finding and isolation of issues
  3. Creation of options and alternatives
  4. Negotiation and decision-making
  5. Clarification and writing a plan
  6. Legal review and processing
  7. Implementation, review and revision [p. 32]

Some of these stages were done as part of the actual in-person mediation session, and some were completed by the participants subsequent to the actual mediation meetings. Still other stages were done by others outside of, and in addition to, the actual mediation effort. The first five stages are assumed to take place within the confines of the mediator’s power and authority and with the mediator’s presence during the session while acting as a neutral third party. The sixth stage was meant to be done by consultation and ratification of an advising attorney or judicial or authority figure. The final stage was seen as being done by the participants themselves, with the potential help of the mediator again in a truncated version of the first five stages if needed. This final stage hints at a circularity of process consistent with the Rummel conflict cycle concept described in Chapter Two. Folberg and Taylor view stage theory as univer- sal to all mediation efforts.

Moore (1996) articulated a twelve-stage general process outline of how most mediation flows in terms of the tasks of the mediator and the movement of the case:

  1. Establishing relationship with the disputing parties
  2. Selecting a strategy to guide mediation
  3. Collecting and analyzing background information
  4. Designing a detailed plan for mediation
  5. Building trust and cooperation
  6. Beginning the mediation session
  7. Defining issues and setting an agenda
  8. Uncovering hidden interests of the disputing parties.
  9. Generating options for settlement
  10. Assessing options for settlement
  11. Final bargaining
  12. Achieving formal settlement [pp. 66

Christopher Moore’s twelve stages assume that five stages take place prior to actual face-to-face mediation sessions, and seven active stages happen within the in-person mediation effort. The process does not propose a need to return to the mediation effort; it assumes that the conclusion will be a satisfactory and complete conflict resolution (rather than conflict management), and the con- clusion will be effective over time. This model is silent about the need for fur- ther consultation and ratification by judicial systems after mediation efforts and any need for or modification by the participants after implementation.

Karl Slaikeu (1996, pp. 285–289) has reduced the stages to five key events that relate to how to sequence and conduct the in-person mediation event:

  1. First contact with the participants
  2. The opening meeting
  3. The use of caucuses during the mediation session
  4. The conduct of the joint/shuttle mediation sessions
  5. Closure

This model assumes a single mediation event, or at least limited numbers of sessions, to accomplish these stages. Designed primarily for business applications rather than family disputes, it specifies the use of caucus—separate meetings with those on each side of the dispute—as a stage of the mediation process itself and does not speak to the need to revise or modify.

These three stage models of mediation are a general description and can be useful to family mediators as foundational concepts. The models will not, how- ever, provide specific guidance about whether or when or how to switch from joint to separate sessions or how to deal with the nuances and dynamics of the family processes outlined in Chapter One. They are not, strictly speaking, family mediation models, because they are not limited to family mediation contexts; they can be applied to settings and dispute types other than family conflicts. Just as a sturdy foundation is required to erect a strong physical edifice, foundational structures are required for creating any mental edifice. These stage theories are helpful as general descriptions and foundational understandings of the basic process that family mediators may tend to use. They give beginning family mediators a general description of the mediation process and provide generalized instructions on how to proceed. They describe the process from the perspective of the observer after the fact rather than from the perspective of the participant or the mediator during the mediation. They lack the specificity needed for step-by-step interaction and practice in family conflicts, and so are best used as they were meant to be used: as general descriptors and guidelines for the flow of any particular family mediation session.

John Haynes (1994) described a model of mediation that he believed is spe- cific to family mediation efforts, designed from the practice of divorce mediation cases. He described the foundation of his family mediation practice as a constant cycling through five general stages:

  1. Gathering data, during which the mediator verifies, displays, and shares the data
  2. Defining the problem (from the data)
  3. Developing options to solve the problem
  4. Redefining positions from self-interest to mutual interests
  5. Bargaining over the options to reach a mutual agreement [p. 7]

For each separate issue or set of complex decisions to be made as part of divorce or other family dispute, Haynes suggested that family mediators continue to cycle through these stages as many times as necessary until all decisions have been reached. Then the mediator writes a mediated agreement based on those decisions. Haynes illustrated this process for divorce mediation efforts, suggesting the topics, sequence, and negotiation that should take place for those issues. This stage model, designed specifically for and derived from his actual practice of divorce mediation, became a practical guide for mediators who wish to follow his lead. The basic assumption of all stage theories still shows through in his model: if the mediator follows these stages and discusses with the clients all the topics listed and then follows the repeating cycle of the five stages for each topic that needs an agreement, the outcome will be successful. John Haynes demonstrated his model on videotape. The series of videotapes (AFM Video Series I; AFM Series II) shows Haynes mediating according to his looping stage model in different family problem types, including a divorce case, the placement of an elderly parent, and a parent-teen conflict (n.d. a, n.d. b). These tapes have served as one of the very few visual tools to show the differences among models in practice and can serve as a springboard for discussion and development during training of beginning and intermediate-level family mediators. It has been announced at several recent professional conferences that stage the- ories are dead. To paraphrase the famous quote, rumors of this death have been greatly exaggerated. These stage models are the basic frame of practice for family mediators, as well as other applications of the mediation process, because they describe the general movement of the interaction through time and are consistent with general conflict cycle theories and actual practice. What they are not, and were never intended to be, is a set of expert rules, algorithms, or cookie-cutter patterns that will tell family mediators all they need to know. Family mediators fol- lowing these stages may still not be successful, because they may not be respon- sive to the needs and dynamics of the families with whom they are working.

I propose that we think of stage theories as generalized descriptions of the general flow of a case through the mediation process. These are wonderful foundational concepts that support and describe the practice but certainly do not fully define it and cannot help a practitioner make the necessary choices during a family mediation process. In this regard, they are not full models of mediation, even if they are grounded on theories of human behavior, conflict theory, negotiation theory, and applied communication


Family mediation started with an orientation toward helping families who were stuck in power struggles and adversarial processes find a kinder and gentler, more efficacious and thrifty way of solving discrete problems of parenting, mar- ital property, and support decisions during divorce than the traditional divorce litigation process. Problem solving embedded in the context of a third-party mediation process was the first wave of mediation practice, and many of the family mediation training models adapted the problem-solving process from community contexts.

Problem solving itself was perceived as an alternative to a retributive and distributive justice system, where people “placed claim and rights” to children as if they were chattel and had those rights distributed to them by the court during divorce. Early divorce mediators wanted to rectify this condition by providing conciliation and mediation services through the courts to determine the needs of children within the family in order to advise the parents and judge regarding the optimum custodial option for each family.

The Association of Family Conciliation Courts was developed by judges, lawyers, and social workers during the 1970s and early 1980s to help parties become less adversarial and work toward a more principled negotiation process during these heated disputes. Judges perceived rightly that they did not always understand the dynamics of a particular family, which affected their abilities to negotiate. By diverting cases to a trained mediator for problem-solving approaches, the mediator could help the family determine the issues and problems. Then the mediator could offer the parents information and education about how to make mutually acceptable choices more effectively rather than follow distributive or procedural justice approaches by going to court first. Groundbreaking court systems, including the Los Angeles County Family Court, Hennepin County Family Court in Minnesota, and Clackamas County Family Court Services in Oregon, helped to develop these ADR services in ways that were loosely based on the problem-solving processes of brainstorming and complete option development, now applied to divorce decision making. It was believed that if the parents during a divorce action were given time away from the adversarial process of litigation and given appropriate information about children, divorce, and custodial options, the family itself would be able to resolve most of the disputes without having to do more than have final judicial review for the majority of divorces. Allowing the family the right to renegotiate its own new boundaries, rules, and patterns of parenting would reduce current and ongoing conflict and therefore reduce harm to the children who had become stuck in the middle of the controversy. The problem-solving/negotia- tive model still works well for the majority of cases referred to mandatory medi- ation, but its limitations have led to the development of newer models and approaches that include more of the family dynamics described in Chapters One and Two.

The problem-solving approach in its best form emphasized the development of multiple options and preserved the family’s right to select the best option based on the standard of the best interest of the child. This concept of attach- ing paramount priority to decisions based on the needs and abilities of the chil- dren became a new judicial principle that tried to take the focus off the legal rights of the parents and put them onto the emotional and developmental needs of the children of the family, who were perceived as the most likely to be hurt by continuing legal and emotional struggle within the family. This move from a distributive, legal rights approach to more psychological health criteria was a major shift in the way courts, advising attorneys, social workers, and other therapists started to look at the decisions being made during divorce.

Influential to jurisdictions was the work by Goldstein, Freud, and Solnit (1973) and others who sought to integrate the understandings and knowledge from other fields such as psychology, social work, and child development into the legal process. To do this required more in-depth work with the family to determine what those needs were. Conciliators and then mediators in court-connected programs across the country provided the vital link between the legal and the mental health and psychology worlds, and the interdisciplinary move- ment led to increasing use of family mediators. Not only were early family mediators mediating between the members of divorcing families, they were also mediating between the courts and the family in a new form of child-centered advocacy by involving the entire family system. This need to help families self- determine the best options for their children and family structure was the major impetus to the development of family mediation as the preferred method for all divorce cases.

In the early days of the court-connected programs in the 1970s and 1980s, conciliators and mediators were provided to divorcing couples by the state at low or no cost to them to help prevent unnecessary divorce and to mediate the terms and conditions for children if divorce was the option. Mediators in these programs often served not only as classic problem-solving mediators but also as sources of information and education regarding the needs of children during and after divorce. They also served as therapeutic screeners to help families determine if their children’s or their responses to the divorce required other ther- apy or intervention concurrently or prior to the legal divorce action in court.

`                            Modes of Family Mediation Practice

Jane Becker-Haven’s graduate work analyzing tapes of court-connected media- tors in family court mediation sessions noted four distinct ways in which the mediators functioned. These modes of operation are as follows: rational-ana- lytic, educative, therapeutic, and normative-evaluative. The rational-analytic mode corresponds to the usual concepts of problem-solving approaches, while the educative mode refers to the role of providing appropriate information about the issues being mediated. The therapeutic mode refers to eliciting feelings and dealing more directly with the family dynamics described in Chapter One. The dominant mode was the rational-analytic, problem-solving approach. In some jurisdictions, mediators and conciliators were given the power to subpoena the resistant or recalcitrant parent as part of the normative-evaluative mode, and some saw their role as being officers of the court who were combining mediation and arbitration and acting as spokespersons for the larger society or advocates for children caught in the middle of disputes.

For Folberg and Taylor (1984), who also saw the dynamics of the mediation process as following a problem-solving and rational decision-making process as well as stage theory, the problem-solving methods were derived from methods already developed in family therapy in the early 1980s as part of the McMaster Model of Family Functioning (Epstein, Bishop, and Baldwin, 1993). Family therapists at the time were also interested in the problem-solving methodology, since it fit well with the cognitive-behavioral approaches and the family contracting methodology they were using to get families to change. Because problem solving could be done by the family alone, early writers family-generated therapeutic differentiated problem solving from the mediation process, which by definition requires attendance and involvement of the third-party mediator. (See Wilmot and Hocker, 2001, for the format for a leaderless “family meeting” problem-solving process still in use and consistent with the aims of family therapists.) Mediation was therefore a more comprehensive process with problem solving inside of it, and the practice of family therapy and the practice of mediation both became very problem solving oriented, which made them somewhat hard to differentiate, despite the more expanded four functions of the mediation modes.

Hallmarks of the Problem-Solving Process

The belief of judges, court administrators, and even family mediators themselves in the early years of family mediation was that if families could have done a positive problem-solving process on their own, they would have, and they would not have filed contested divorce actions and modification. Therefore, mediators were needed to help divorcing parents become successful in problem solving by providing that problem-solving process in a better way. Parties to disputes who had filed contested proceedings with the court, and later all cases that involved children, were diverted to mediation services, based on the pre sumption that mediation processes could better help the family reduce conflicts and develop appropriate solutions to the problems they were experiencing by helping the family do this problem solving in a more effective way.

It became the mediator’s job to lead the family through this problem-solving process in order to develop the options and alternatives prior to negotiation. Thus, the problem-solving process became perceived as a necessary part and the dominant mode and model of the larger mediation process.

Early family mediation problem-solving models (Taylor, 1981, 1988; Salius and Maruzo, 1988) emphasized the role of the family mediator in determining the issues and problems and then providing the logical problem-solving approach to solving or managing the dispute. Problem solving was the process of choice in the 1970s and 1980s, not just in conciliation courts and for mediators but also in therapeutic practices such as counseling, therapy, and social work because it fit well with the cognitive-behavioral approaches then being used in those fields.

According to Folger, Poole, and Stutman (2001), participants need the fol- lowing beliefs and characteristics in order to problem-solve effectively in any context:

  • Have a vested interest in the outcome.
  • See collaboration as being helpful

lly find the true interests, not just make concessions to end the process.

  • That both sides can be “right” simultaneously.
  • Both sides can understand the other’s perspectives, and will work to minimize barriers to working together, such as derision, defensiveness, and status differences.

As opposed to the other typical responses to conflict (such as avoidance, accommodation, compromise, or competition), problem solving or collaboration was perceived as being a higher, more principled response to conflict, and using a mediator was a way to help parties in dispute move to that more cooperative yet self-assertive place. It was believed that if mediators could get all disputants to focus on solving their common problems rather than trying to advocate for their own preferred solution or compete and defeat the others, then the mediation effort would go well, agreements would be negotiated, and out- comes would be more durable.

These assumptions about the problem-solving process may be true, but one or more members of a family in a dispute may exhibit none of the criteria necessary for effective problem solving due to other complex systems and personal issues. Also, problem-solving styles for dealing with internal family disputes may not be culturally consistent for particular social units (Folger, Poole, and Stutman, 2001). A family member may have no investment in losing face or being demoted to coequal status with the others. Family members may not be invested in solving the problem. Perhaps maintaining the conflict is somehow functional for them; they may gain secondary rewards from it or maintain their role within the family.

Family mediators will probably always find some distributive issues (money, objects, time, or resources that must be fairly apportioned) embedded in the disputes they mediate for families and therefore will always have to have a solid working knowledge of both distributive (win-lose, competitive) and integrative (win-win, collaborative) negotiation, as well as the basic problem-solving process in mediation. Excellent new books on negotiation, such as that by Lewicki, Saunders, and Minton (2001), thoroughly explain these distinctions between negotiative approaches.

At the heart of most successful mediation is some level of direct problem solving and negotiation between the participants. Family mediators will find that having a problem-solving model based only on distributive or integrative negotiation principles is often insufficient for the types of disputes and the complexity of the dynamics they will be mediating. As a model, problem-solving approaches based on negotiation make perfect sense for other applications, such as community-based and environmental issues, single-issue complaints, and disputes where the parties need and want identifiable outcomes or the problem seems clearly defined to all disputants. However, these models may lack the understanding of what is underneath the negotiation or recognize the family dynamics but have no method to deal with the dynamic that is creating or main- taining the conflict in family disputes.

Problem solving has been successful and useful in family mediation because families have real issues of allocation, distribution, and needs for certainty in their family disputes, especially in divorce, and so those hard issues can respond to a problem-solving approach. Certainly, divorce disputes require parents to determine custody, access, and other issues that can have only one option functioning at a time. Also, all families need to take unusable, frustrat- ing complaint processes and turn them into effective decision-making processes that have knowable outcomes. At the heart of mediation still resides the need to clarify that which is not known. And yet family mediation requires practitioners to go beyond the dispute to understand the people and their system. Problem-solving approaches emphasize both the definition of the problem and the selection of appropriate remedies for them, but family mediators are often mediating with families whose members all see the problem in different ways. Family mediators need models and approaches that are consistent with or have problem solving embedded within them, yet offer more understanding and help with the resistance to change that is often encountered in these situations. Therapeutic and transformative approaches, described later in this chapter, are additions to the basic model of problem solving that can help family ADR practitioners mobilize family members and the family system in different ways.

Limitations and New Paradigms

Sometimes in order to draw distinctions between an established paradigm and a new conceptualization, there is an initial definition by negation—that is, a disparaging of the former in order to present the need for the new. Many practitioners found this happening when Bush and Folger (1994) lambasted the problem-solving process because of its potential for undue influence to achieve results and demonstrate problems solved, whether they really were or not.

There is no need to vilify problem solving in order to extol the virtues of other more expansive models and approaches. It is not necessary for family mediators to choose arbitrarily between problem solving and other approaches. Instead, the wise family mediator should look for ways to integrate basic problem-solving and negotiative understandings with other approaches. There will be times in family mediation efforts when classic problem-solving, negotiative mediation, with its linear, methodical, rational, and conclusive decision making, will be the best process for the clients and the case.

However, most family mediators are now also training themselves in other models and approaches beyond a negotiative or problem-solving model so that they can more effectively deal with the family dynamics that can scuttle problem-solving efforts prematurely. Standard negotiation and problem solving is functional and foundational for family mediation, but it is not always sufficient for family mediation dynamics and disputes. Because many of the practitioners functioning today have been trained by problem-solving/negotiative mediators, it may be time to look at some newer, more systemic and dynamic models and approaches



Procedural models are similar in basic outlook to problem-solving and negotiative models, but add a dimension of following strict rules to create desired out- comes. These models propose that if the family mediator and the participants follow all the procedures, then the outcome will be positive. Like stage models and classic negotiation and problem-solving approaches, procedural models emphasize the dispute content and the prescriptive mediation process rather than the dynamics of the people or the systemic issues of the family context. Stage models give generalized statements that all mediation should follow and are sequenced in approach, and problem-solving approaches focus on the analysis of the dispute and a rational, linear process for examining the problem and the possible solutions and options through education, brainstorming, and finally negotiation on options. Procedural models require practitioners to work in a highly specific, organized, and sequential way, dealing with each case exactly according to the procedure, with little variation from case to case.

Traditional procedural justice requires participants to submit their issues and concerns to a set of processes that have been determined by society to be equal and therefore are assumed to provide fairness to everyone. Our judicial and legal system is based on these procedural assumptions and provide due process and equal protection of each side’s interests by maintaining strict procedural safe- guards. Courts provide due process in all civil and criminal proceedings, and citizens must assume that if the procedures have been scrupulously followed, the outcome will be fair. This is but one viewpoint of justice. (For an excellent discussion about the development of other forms of justice, such as restorative justice and interactive justice, see Bunker and Rubin, 1995.)

Because so many practitioners of family mediation come from the legal and judicial community and are steeped in procedural justice, many early models of family mediation continued these assumptions by outlining new family mediation procedures within this tradition. At first, the critique of family mediation was that mediators helped parties negotiate without these usual benefits of pro- cedural justice and therefore mediators were “bargaining in the shadow of the law” (Minookin and Kornhauser, 1979). Those who were concerned thought that family mediators were in fact doing their clients a disservice, since they were not being provided the safeguards of procedural justice as they would be in the courts when they mediated an agreement and did their own “private ordering” and settlements without the benefit of case law and precedent.

Proponents of procedural models of mediation were attempting to bring the safeguards of procedural justice to the practice of mediation and thereby bring the practice of family mediation to a level of acceptance within the larger legal and justice communities. Instead, being outside standard procedural justice con- cepts and being truly an alternative resolution system, this was an attempt to make mediation acceptable by engaging in a different process although one based on similar concepts. As mediation processes of all types have been adopted as diversion programs for courts and as ADR has become now defined as appropriate for dispute resolution in combined courthouse programs, this issue of acceptance of mediation by the judicial community has largely evapo- rated, leaving the notion of procedural mediation processes.

Structured Mediation Model

One of the earliest articulators of a procedural model of family mediation for divorce cases was Coogler (1977, 1978, 1982), who developed the structured mediation model. Trained as an attorney and having undergone a divorce, Coogler realized that a better way could be developed for arriving at fair and workable divorce agreements by getting the parties to subscribe to a set of rules for fairness and for conducting the mediation session. Based on Morton Deutsch’s concepts of the role of the third-party neutral as establishing norms for rational engagement and resolution, Coogler helped develop a set of rules that participants would have to embrace voluntarily prior to starting mediation efforts. In this model, participants found an alternative to the adversarial judicial system while still operating within procedural justice concepts. Because the practice was consistent with procedural justice concepts, it fit well with the existing judicial system. Participants could work collaboratively in mediation toward the mutual benefit rather than having to define each other as competitive adversaries, yet have the safeguards of an orderly, defined procedure to follow.

Because the mediation was done in a structured, procedurally fair way, the assumption was that the outcome would be more likely to be fair. The highly structured set of rules was based on prevailing principles of fairness, particular state statutes, and problem-prevention strategies, developed through Coogler’s experience, to diminish dirty tricks, hidden agendas, and power ploys. “Coogler held that allowing the couple to resolve small pieces of the controversy helps the couple maintain their commitment to the process and provides continued success” (Grebe, 1988, p. 232).

At the conclusion of mediation, the mediator operating out of this structured mediation model would bring in an impartial advising attorney to advise both the mediator and the participants on the legal implications of the agreement they had just reached. The use of the advisory attorney was one of the more controversial features of this model (Grebe, 1988), because the attorney acted as a technical legal resource and advised the couple together and did not rep- resent either party. At the time, this was a radical concept that was not taken lightly by the legal community; in fact, charges of unauthorized practice of law and other process concerns were voiced. Nevertheless, later acceptance that mediation was a legitimate and necessary part of the larger judicial structure and ADR movement helped make such mediation practices acceptable to the legal community. Although the official structured mediation model that Coogler pioneered may not be operating in its original form at this time, it has been extremely influen- tial. Basic mediation training now offered by jurisdictions and private trainers is often developed from or influenced by this model, and many trainers and systems have created trademarked and copyrighted variations that still rely on the basic assumptions of this model. Because it was developed specifically about divorce, it has not made the leap to the larger concept of applying mediation efforts to other family dilemmas and conflicts. Nevertheless, the underpinnings tend to continue in mediator development of other forms of family dispute resolution

Hallmarks of Other Procedural Models

Many of the newer uses of mediation for family disputes are relying on models of mediation that were based on procedural assumptions and foundations. A particular family mediation model could be said to be procedural (although not necessarily part of the structured mediation tradition) if it has the following basic premises:

  • The participants subscribe to a set of rules for mediation that will be fair in some external, objective sense and that follow a common format or process from case to case.
  • This format generally follows standard procedural processes used in judicial procedure, such as equal time, equal processes, and scrupulous balancing of each participant’s involvement.
  • All parties adhere to these rules. Violations of them are quickly apparent and dealt with.
  • By following the rules, the parties are operating in essential fairness and will accept the outcome as fair, thus reducing ongoing conflict.

A mediator operating from a procedural model would research the laws and develop objective rules that incorporate society’s ideas of outcome fairness. That mediator would also develop rules of treatment during the session that require each person to follow the procedures to establish and maintain fairness during the session. There would be initial contracting by the participants, with the mediator requiring the participants to conform to these standards of fairness and rules and then a monitoring of their compliance during the mediation session. It would be assumed that the outcome of this fair process would be fair and should be upheld by each participant. The problem-solving, logical, rule-based approach of procedural models does not work for all families and all family problems. Chaotically organized families would not necessarily be able to respond positively to procedural mod- els initially, because they tend not to be able to maintain rule sets over time. The same is true when the family problem being mediated revolves around impulsive and egocentric behavior on the part of one or more members of the family. But if the family was able to complete the initial stages, the very nature of the step-by-step procedural methodology and model could help keep it on a consistent track.

A procedural model is more likely to work with families and disputes where all parties can agree to a common core of shared values and outcomes, such as, “We don’t want to place Mother in a nursing home” or “We both agree that an out-of-home placement is best for this child.” When the participants have enough personal resilience and calmness to work through a process that requires taking turns, subscribing to objective external standards, and obedience to a higher value of mutuality, collaboration, and fairness, then procedural models can work. If they lack these qualities or show impulsivity, lack of respect for rules and authority, and inability to follow logical sequences due to personal states such as attention deficit hyperactivity disorder, then the slow, methodical nature of the procedural process may be unusable and inappropriate.

Many practitioners have to develop their own model to fit a new and specialized application of family mediation, the needs of their jurisdiction or clientele, or because no specific training is available for them in the type of family dispute they wish to mediate. Because we are still creating the field, mediators need models of mediation that they can replicate for different problem types and different settings. Because models and the concepts on which they are based are transferable learning, they can serve as blueprints for the further development of family mediation. It is important that practitioners and those who are in charge of selecting or designing new uses for mediation within exist- ing systems know what models they are using and why. Practitioners who feel confined by a procedural approach learned when they were trained might want to explore more facilitative and interactive models.


Therapeutic models of family mediation often bring the background and training of family therapy into the mediation, and the theories and practices of the clinical or therapeutic practice are adapted to the format required of family mediation, such as writing agreements at the end. Therapeutic models have a core belief that the individual and the family unit must make a personal or sys- tem change before they can effectively make an enduring agreement.

In the early days of family mediation, practitioners often came from other helping professions and brought their beliefs and theoretical perspectives with them. Because structural and strategic family therapy premises about ideas such as triangulation and coalitions, boundaries and secondary gains, and the struc- ture and function of the dispute for different family members speak to the way in which the family is organized and behaves, these concepts were particularly helpful in organizing the family mediator’s understanding of the people and the problem from that perspective. Thus, structural-functionalist therapists started becoming family mediators, as did Bowenian and strategic therapists. They sim- ply added the problem-solving and negotiative understandings to their existing way of formulating the need for change. Therapeutic mediation approaches often seem to be blends of the basic conceptual framework of the therapy mode, with problem-solving mediation approaches blended in.

Early practitioners of family mediation often had to distinguish the differences in their practice between when they were mediating and when they were providing therapy. Early articles (for example, Kelly, 1983) tried to identify the differences between mediation efforts and traditional therapeutic models like psychotherapy, so that the field of mediation could grow from the same constructs but become a different practice. Understanding what was similar and what was different, practitioners could tell mediation clients and therapeutic organizations, licensing boards, and insurance companies when they were doing which function.

Therapeutic Family Mediation

One of the most fully articulated, comprehensive family mediation models is the therapeutic family mediation (TFM) model developed by Irving and Benjamin (1995). Based on over twenty years of clinical private practice, this model requires more time and investment than is typical within existing court-connected settings, since the average number of hours per case is sixteen to thirty- two, as compared to eight hours or less in most judicially based mediation services. Irving and Benjamin also indicate the limitations of the model and note that their high success statistics are based on the fact that their clientele “display fewer and less serious presenting problems and complaints” (p. 149) than is common in free, court-connected services. Based on these disclaimers, family mediators should consider carefully whether this model is appropriate for their setting and population. They may want to consider adopting this model for family mediation cases that present unusual challenges or may require more in- depth work because the more standard, briefer problem-solving/negotiative model is not working with a particular family. Although this may not be the first service delivery model that a mediator chooses for a specific case, it may, with some modifications, be the type of extended mediation process needed for intractable family conflicts even within existing court-connected programs and services.

TFM practice assumes that the practitioner has the necessary therapeutic background and training to help provide therapeutic assessment and intervention when needed. Unlike the other models already described, this one is based on the communication, structural, and strategic models developed in family therapy rather than the negotiative and problem-solving models alone. It assumes certain basic foundations from those therapeutic theoretical approaches.

This foundation leads to a working premise that the family in conflict is an ecosystem that must be dealt with systemically rather than from a rights or a negotiative perspective. Mediators using this model believe that families display dysfunctional behavior on a continuum and that mediators must always be on guard against being co-opted or included inappropriately in the system, which would destroy their neutrality and effectiveness. Mediators further believe that unless they are effective in changing the behaviors within the family system that are unhelpful to the mediation effort, their efforts are likely to fail. Therefore, the model is based on a personal and systems change perspective rather than a procedural justice perspective.

The TFM model requires providing mediation service in four distinct phases:

  1. Assessment (screening by level of readiness)
  2. Premediative phase (counseling and therapy)
  3. Negotiative phase (in-person joint mediation)
  4. Follow-up process (six weeks after mediation)

The first two phases of assessment and premediation counseling and the final phase are not typically found in most court-connected mediation programs or even in most private practice settings.

The first phase, assessment, is a screening process that sorts the participants into one of three categories:

Level 1: Those for whom mediation is contraindicated

Level 2: Those who are ready to enter the negotiation phase of mediation immediately

Level 3: Those who would likely benefit from premediation counseling or therapeutic intervention, then reassessment for readiness for the negotia- tion phase

Assessment of the parties in this model includes at least the following seven major categories:

Post divorce spousal functioning, including communication, level and type of conflict, violence, trustworthiness, usual behavioral patterns and flexibility, the attachment, divorce readiness, and the plan for their separate futures

Parental functioning, including ability and functioning, involvement, changes since separation, attributes of the children, the children’s reaction and how they were told, and the level of closeness and attachment between children and each parent.

Resources, including stress levels, coping, and financial, social, and emotional resources

Ethnicity, including the cultural values and beliefs, immigration and acculturation history, and language fluency

Interpersonal context, including new partners, support networks, and institutional involvement

Court involvement, including how long the court has been involved, whether the parties are legally represented, and how adversarial the legal involvement has become

Marital status, including whether this is a first or subsequent cohabitation or marriage, prior separation experiences, and any hidden agendas or assumptions

Twenty percent of the couples presenting for divorce services were screened into the Level 1 (contraindicated) group, based on a number of factors—for example,

  • Overwhelming, intense stress
  • Obsessive preoccupation with the spouse who was initiating the change or dispute
  • Intense anger, rage or uncontrolled conflict
  • Involvement of others, or enmeshment within the family dynamic
  • Current or on-going family violence
  • Severe cognitive dysfunction by one or both the spouses (Irving and Benjamin, 1995, p. 172)

One of the reasons that the outcome agreement rate is 70 percent in this model is that it screens out the most difficult 20 percent of cases. This is some- thing that public mediation services cannot do, so they naturally show a lower rate of outcome success. The Level 1 criteria that are used to screen out cases denote the exact cases that often need help the most, require the most adapta- tions and specialized services, and are the most challenging population for whom to design appropriate family mediation services.

Level 2 participants showed many of the same characteristics as Level 1, but in a significantly lesser degree, and so were evaluated as capable of function- ing adequately in the negotiative phase. Level 2 participants start in that phase without additional premediation individual sessions. Most mediators would see these as the typical cases they work with: some problems and other issues but sufficient emotional and negotiative skill and motivation to do the standard problem-solving, negotiative processes of mediation efforts.

Benjamin and Irving report that approximately 30 percent of the cases pre- senting for services were functioning at Level 3 and so qualified for premediation services.

The TFM model provides several individual sessions for each spouse in this level of functioning in order to assess, support, and develop each per- son’s ability in the following areas:

  • Accept the reality of the source of the dispute (the ending of the mar- riage) • Make a commitment to the mediation process as opposed to adversarial approaches
  • Develop information for informed decisions during the negotiative phase
  • Provide specific support and training on how to become better at com- munication and negotiation during the session
  • Ensure safety to protect against threats, intimidation, or violence
  • Reduce the intense dysfunction of the person, the spousal system, or the parent-child system
  • Reduce blocks in the family’s relationship to outside systems, such as relatives, lawyers, and other social and judicial agencies.

Once these concerns are sufficiently resolved so that mediation efforts can be effective, the premediation phase is concluded and the third, or negotiative, phase of the mediation process starts. Based on the principled negotiation literature that emphasizes mutuality rather than adversarial process, the mediator helps the parties make the complex decisions regarding the structure and function of the new postdivorce family system. The authors point to the use of posi- tional bargaining occasionally for specific issues. This model allows participants to use brief time-outs to regain emotional control and also provides the premature ending of any particular session to have participants work out their plans separately as their preferred options and alternatives prior to the next session.

Although they generally follow the same procedures outlined in other models for this negotiative phase, Benjamin and Irving highlight their use of reframing techniques and finding superordinate, mutualized goals to keep the process moving in a positive direction. However, if these are not sufficient, then a temporary time-out can be called while one or both return to the earlier individualized therapeutic approach of premediation to deal with the relational issues before resuming the negotiative process.

The authors describe the process as a series of systemic feedback loops or variations on the pattern based on specific issues. Those who need different levels of therapeutic involvement can get them in this model, since they can enter at different points based on the assessed need and capacity of the disputants. The need for a highly variable process reflects the systemic rather than generic view of families. Assuming the negotiative phase was successful or that the return to the second phase of individual therapeutic sessions was sufficient to get the process to actual agreements, the mediator then provides a written agreement and auto- matically sets up the fourth and final phase of mediation: the follow-up process. This usually happens six weeks after successful negotiation; there can also be periodic checkups or on an as-needed basis. The goal of this phase is monitor- ing the family functioning to prevent dysfunction and to reinforce the negotiated agreement without damaging repetitive cycles of litigation and legal modification efforts.

Although this model refers out to traditional adversarial process any cases that appear unlikely to benefit, it has the advantage of being able to be customized to the parties and their situation. Its hallmarks are its built-in perspective that each family, despite the similarity of the dispute, has different needs. It attends to this by designing the system as it evolves and by adding the important first phase of comprehensive assessment of the clients as well as the dispute, along with a secondary phase of individual work with each person separately in order to help prepare everyone for the actual mediation negotiations. The practitioners are not limited by their model, but instead provide therapeutic functions concurrently with or prior to the problem-solving negotiation phase to preempt problems and coach the clients to become more effective deci- sion makers.

About their model, Irving and Benjamin (1995) conclude, Any inflexible model of mediation practice will fail with some proportion of these couples simply because something other than negotiation must happen before they are ready to negotiate. Therapeutic family mediation, by its emphasis on an ecosystem sensitivity and understanding of client couples and their social contexts, seeks to establish the optimum fit between the need of client couples and the mediation techniques available to assist them in reaching an amicable and durable agreement. [p. 197].

The TFM model’s limited utility in current court-connected centers and set- tings, its inability to deal with the lower-functioning 20 percent of families who need mediation services, and the expense of the multiple sessions leave this model as perhaps the most fully articulated but least likely to be adopted by jurisdictions and private practitioners entering the field at this time.

Perhaps new approaches could be developed within the same constructs for those who are inappropriate for this model, and funding sources and judicial systems would see the importance of therapeutic intervention. If this happened, the TFM model could become used more extensively, even in court-based mediation programs, as well as adapted to other family problems besides divorce and separation. Those needing premediation therapeutic intervention could receive what they need as long as they need it to help make mediation successful.

Intensive work with the 20 percent of cases screened out of this model could also make this model adaptable by jurisdictions and practitioners. Because it is so fully articulated, this is a model appropriate for research and replication. It fits with the new judicial principles of “one judge, one family” and the concept of multidisciplinary partnerships and building a spectrum of continuity of care in service delivery systems recommended by knowledgeable sources (Johnston and Roseby, 1997). Strategic, Structural/Functional, and Bowenian Models In the formative stages of family mediation perspectives, family mediators tried to include family therapy perspectives in order to understand families and help them restructure themselves. Brown and Samis (1986), Gadlin and Ouellette (1986), and others applied these perspectives to family dispute resolution to ground mediation practice in these family therapy theories and practices.

A basic tenet in strategic family therapy is that the therapist must help the family redefine and reframe the problem so it can be solved, or find a solvable problem that the family was ignoring. Strategic family therapists use physical and behavioral symptoms as symbolic representations of the problem, and find that the attempted solution to “the problem” often becomes the real problem to be dealt with in therapy. Another hallmark of strategic therapy is the active stance of the therapist, who often uses highly directive techniques, such as paradoxical injunctions or directives, to get the family to change the problematic family structure or pattern. Applied to family mediation, these therapy models would require the mediator to become highly directive in moving the partici- pants toward change by making them change how they interact. Amundson and Fong (1986) integrated John Haynes’s mediation work with the structural/ strategic concepts of reframing, directives, and use of rituals to break patterns and create new structures within the family.

Peter Maida (1986) articulated the Bowenian concepts of fusion and differentiation as useful for family mediators working with separating couples. Wayne Regina (2000) continues the tradition of discussing Bowenian family therapy constructs for family mediators. The longevity of these constructs speaks well for their usefulness and the universality they still hold for practitioners working with families who are in conflict and crisis. The wise family mediator will become familiar with these models of therapy and mediation because they still speak to the nature and change process of families.

Many of the Bowenian understandings about families were included in Chapter One, since they inform so many practitioners. Those who have come from therapy backgrounds will no doubt have had some exposure to these concepts, but those who have come to family mediation from law, business, or other professions may not have the grounding in this theory that would be helpful to practice. It is beyond the scope of this chapter to articulate the theory and practice of Bowen systems theory fully, and readers are urged to do more reading on these constructs. Of particular note to family mediators are the concepts of levels of differentiation, the differences between the intellectual and the emotional systems, and the way this theory posits that families make change.

Family therapists following the Bowenian method would routinely allow for some individual time or caucus, partly because it provides an opportunity to see if the participant has the capacity to differentiate himself from the others in conflict. A family mediator using the Bowen systems theory perspective might find that caucusing needs to be used with caution because it leaves the mediator vulnerable to triangulation and at the same time requires a high level of differentiation for the person in the caucus. The same is true for the issue of whether to use a co-mediator. The decision would be made from the Bowen systems theory model based on the co-mediator’s ability to defuse the triangulation and the participants’ level of differentiation rather than just on efficacy, preference, or money. Many other choices a family mediator might make during the mediation process could be informed by the Bowenian perspective.

Bowen systems theory and Bowenian-informed family therapy is now con- sidered a classic approach in the field of marriage and family therapy. Family mediators should be familiar with the constructs, even if the model of mediation they practice did not directly develop from these therapeutic understandings. Another therapeutic mediation approach, hybridized from the structural family therapy literature, is that articulated by Donald Saposnek (1998). Saposnek takes the foundational concepts from strategic family therapy and applies them to the mediation context of family disputes about custody and access for divorcing families.

Larry Fong, who collaborated extensively with John Haynes to develop the underpinnings of family mediation, considers his family mediation model to fol- low directly from the systemic family therapy perspectives and literature created by the Milan group, a small band of practicing therapists who have influenced the development of family therapy. Fong’s early article with Jon Amundson (Amundson and Fong, 1986) pointed out that Haynes’s pattern and recommendations for family mediation had theoretical underpinnings that were consistent with the strategic family therapy perspective. They noted that when couples in divorce mediation were being asked to do negotiation on budgets, the process required by the mediator (John Haynes) was similar to the strategic therapy perspective of creating a therapeutic double bind, where old nested patterns in the relationship reemerge. The promotion of empowerment and individuality of the individual by ending established patterned behavior is one of the basic tenets of the strategic and structural family therapy movement. Those therapy models also emphasize the therapist’s use of techniques of reframing and positive connotation, therapeutic directives, and creation of rituals that address the systemic patterns to bring about change. Amundson and Fong (1986) point out that “the entire Haynes model of mediation and its directives may be seen as a protracted and extensive therapeutic ritual aimed at evoking a perspective useful in the ongoing management of separation as a product of divorce” (p. 73).

Larry Fong, Donald Saposnek, and others continue to refine the mediation process by applying these family perspectives. This crossover knowledge and theoretical base shows why family mediation is truly an interdisciplinary prac- tice and must remain open to constructs, theory, and research from other ther- apeutic and family-serving fields.

Impasse-Directed Mediation

Another theoretically grounded therapeutic mediation model is impasse-directed mediation, which was developed and articulated by Janet Johnston (Johnston and Roseby, 1997). This model is aimed at divorce and separation cases where high conflict and domestic violence has created emotional harm for children. These are cases where the parents’ conflict and interpersonal dynamics are so pervasive and destructive that they either cannot be brought to standard mediation or fail in the attempt. This inability to come to resolution of the dispute through standard mediation or litigation creates ongoing legal recidivism in the form of successive and contentious litigation, modification, and evaluation processes, which in themselves are harmful to children and further enmesh them in the conflict dynamics.

Based on earlier work by Johnston and others who wished to create a more therapeutic mediation process that would more effectively reduce harm to children caught in the crossfire of unremitting conflict, this model starts from a research-proven assumption that parents who are experiencing and are them- selves stuck in these escalating cycles of conflict have diminished ability to meet their children’s needs and buffer them from the harm (Johnston and Campbell, 1988). These parents tend to compromise their parenting choices and practices by not dealing with underlying personal problems that may be fueling the conflict or by being so distracted by the conflict that they can no longer see what is in the best interests of their children. The goal of this model is to educate parents about their children’s needs and provide direct therapy with the parents and children in order to help them cope better and manage their family conflicts and dynamics.

The impasse-directed mediation model assumes that impasses or continuing conflicts in families happen on three levels: the internal dynamics of each individual, the interaction between the disputants, and the external dynamics between the members of the conflict and the larger social network. Any particular impasse may have one or all of these levels—for example,

  • Internal: Divorce as loss, triggering personal attachment or loss issues
  • Interactional: Idealized images and shattered dreams; traumatic separations and negative images of divorce
  • External: Extended family involvement, or “tribal warfare”; pathologizing labels by evaluators and court personnel

As initially designed, impasse-directed mediation is a fusion of direct ther- apy and mediation, and in many ways is similar to Irving and Benjamin’s TFM model, except that it works with the very cases that TFM excludes. Impasse- directed mediation comes in two forms: individual, in which a single family is seen for sequential therapy and mediation sessions, or group, in which five to eight families are provided a series of twenty-five to thirty-five multihour sessions. Cases are directed to attend by court referral, but the impasse-directed mediation, in both forms, is provided as a private service outside the court setting. In both the individual and group formats, the four-part process is the same.

First is an assessment phase of six to eight hours in which the children are observed, parents are observed interacting with the children, and these clinical observations are added to a detailed, standardized assessment process, which includes a history of

  • The dispute
  • The parents’ personal development
  • The marriage or relationship, and its breakdown
  • The developmental stages of the children
  • The impasse or conflict and its effect on the children

The outcome of the first phase is formulation of an intervention plan, which is agreed on by all the service providers to the family in a strategy conference. From there the model moves to a pre-negotiation counseling phase, in which each parent is seen separately as a therapy intervention rather than a media- tion. In the group mode, these separate sessions are held as separate groups for parents and for children, and two counselor-mediators run the adult groups, while a different counselor-mediator runs the children’s groups. During this phase, the practitioner acts as a therapist, selecting the most efficacious persons or subsystems to provide intervention. These interventions range from asking questions to working with the new partner or extended family members, or even direct advocacy to get the child what is needed, such as additional ther- apy or a change in schedule. At the same time, the practitioner of this model is working to educate the parents and provide direct feedback and communica- tion based on what is being seen in and said by the children, which lends urgency and credibility to the interventions with the parents. Significant others such as new partners are included as needed, as well as collaboration with other service providers.

If the hardened positions of the parents are still not being affected, the practitioner switches to more of a reality-testing approach, where the likely scenarios if they remain recalcitrant when they go to court are played out in detail. Offering this reality check is not the same as giving legal advice but instead focuses on the response and potential for harm to the children. The second phase is the longest, and it can extend as long as the families need it to, which often leads to twelve to sixteen hours of direct intervention.

The third phase of this model is negotiation or conflict resolution, in which the typical problem-solving and negotiative mediation process in joint session (unless violence precludes this) is used, but focused on the dynamics that have created the impasse as already identified in earlier phases. When there are concerns about safety, shuttle mediation is used. This tends to be a brief phase of one or two sessions, with the goal of making agreements that do not exacerbate the emotional dynamics of the impasse.

The fourth phase calls for final implementation. A concluding session helps each parent clarify the agreements and necessary tasks; referrals to other resources such as therapy or court services are made; and the counselormediator remains on call for emergency consultation or mini-mediation sessions. There are six-month and two-year follow-ups to determine the durability of the agreements and any changes in the needs of the children.

While this model fits the criteria for short-term therapy, it was perceived as too long for court-connected or publicly funded programs, so a modified version, called the brief impasse consultation model, was developed. It shortened the assessment phase to just an interview with each parent plus either collateral contacts about the child or an interview or observation of the child. A feed- back session strategically represents the child’s dilemma and needs to the parents; then there is a redirecting session, in which the parents agree on the procedure they will use to resolve the impasse and meet the child’s needs. The parents are then referred to community services, which monitor and support implementation of the agreement.

Quantitative research conducted on this model shows that the families for whom it is most effective are those in which the parents “are vulnerable to loss and rejection, those who have experienced traumatic or ambivalent separations, and those who are enmeshed in ‘tribal warfare’ within the larger social network. The approach may also be beneficial where children are showing symptoms of distress or are at high risk because the parents are too preoccupied with the fight to focus on their needs.” (Johnston and Roseby, 1997, p. 238). Johnston and her colleagues caution that this model, as extensively therapeutic as it is, cannot work well with parents who have severe personality disorders; there is some question as to whether such mental conditions are strong indicators of inappropriateness for any model of mediation. (See Chapter Five for more dis- cussion of mental health issues in mediation.) This model also is not recom- mended by its creators when there is a pending investigation of severe domestic violence, when there has been parental abuse of children, or when other extremes of family dysfunction are present. The research also shows that this model is most effective when used along with legal restraints and sanctions such as restraining orders, supervised visitations, and other court interventions, early in the case.


In the 1980s and early 1990s, mediators realized that there were many limitations to the models they were using, particularly the procedural and problem- solving approaches. Larry Fong (1992) asked mediators to examine the paradigms they were using, the deep beliefs under the models, and the techniques they were using.

Bush and Folger assaulted the old paradigm with their important new para- digm shift in their controversial book, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994). They described an approach to mediation that focused on transforming people by promoting the deeper human values and needs for recognition and empowerment rather than keeping the focus of mediation on the dispute and the problems to be solved sequentially and logically or on outcome documents, mediated plan, and not going to court. Suddenly, the focus of family mediation was on changing the people rather than changing the dispute. The need to solve problems and come up with written agreements through direct negotiation was subsumed by the need to transform clients. Family mediators who subscribed to this model saw themselves as changers of attitudes and not just behaviors, transformers of people rather than problems. Problem solving was painted in sinister terms in this book, and family mediators operating out of the old problem-solving models were perceived as becoming unduly influencing toward their clients. What mediators were supposed to be doing and why suddenly seemed to change, and trainers and trainees now described themselves as transformative.

The concept of problem solving became a problem to solve with the development of transformative mediation approaches. The fact that family mediators had been helping participants define the issues and then push toward resolution and agreement became a grave concern because it allowed the mediator too much room for meddling, pressuring, and manipulating the process so as to achieve an outcome that would not last because it was not based on the true interests or abilities of the parties. As Bush and Folger (1994, p. 75) put it, “The problem is not with individual mediators but with the approach as a whole.”

Transformative mediation was a concept that seemed intuitively right to many practicing family mediators, because they had experienced the limitations of the stage theories, procedural, and standard problem-solving/negotiative approaches for some mediation sessions or with some or even many families. Their existing models did not explain why they did not work some of the time or with some of the cases. It seemed obvious that the disputants own the dispute, and that to change the dispute, one would have to change the people. This change from getting behavioral agreements to changing disputants’ attitudes and self was a huge paradigm shift that rocked the mediators and brought a firestorm of controversy, self-examination, and review of models. While many practitioners became enamoured of the transformative approach in concept when it was introduced in 1994, it took several more years before mediators had a real sense of how to practice family mediation using these constructs and the transformative mediation model.


Hallmarks of Transformative Process

The following ten concepts that Folger and Bush (1996, pp. 263–278) articulated may not constitute a fully formed model of practice but nevertheless serve as guidance on how to do mediation from the transformative perspective.

  1. “The opening statement says it all”: Describing the mediator’s role and objectives in terms based on empowerment and recognition
  2. “It’s ultimately the parties’ choice”: Leaving responsibility for out- comes with the parties
  3. “The parties know best”: Consciously refusing to be judgmental about the parties’ views and decisions
  4. “The parties have what it takes”: Taking an optimistic view of parties’ competence and motives
  5. “There are facts in the feelings”: Allowing and being responsive to par- ties’ expression of emotions
  6. “Clarity emerges from confusion”: Allowing for and exploring parties’ uncertainty
  7. “The action is ‘in the room’”: Remaining focused on the here and now of the conflict interaction
  8. “Discussing the past has value to the present”: Being responsive to parties’ statements about past events
  9. “Conflict can be a long-term affair”: Viewing an intervention as one point in a larger sequence of conflict interaction
  10. “Small steps count”: Feeling a sense of success when empowerment and recognition occur, even in small degrees

These ten statements sum up the philosophy of the transformative approach and also show the change of this approach from classic problem solving, which put the responsibility for the process and the outcome more on the skill of the mediator than the ability of the participants. Very different from procedural models that require strict rules and lockstep uniformity, this model posits a flow and interaction in the session that is both unpredictable and only generally con- trolled by the mediator and is self-led by the participants. In this respect, transformative mediation practice embodies the deep democracy and faith in the power of the participants to determine a unique process that is consistent with their true interests. This approach emphasizes the freedom of the participants to determine their own process, to be full co-constructionists in their own drama. It allows, even demands, that family mediators be free of confining, preconceived notions of what is important, how to proceed, and the trappings of procedural justice.

Doing Family Mediation Transformatively

Family mediators who want to adopt the premises of this approach have only the ten principles to guide their practice of providing empowerment and recognition. At this point, there are no videotapes that show a family mediator who identifies with this model; indeed, the approach itself is antithetical to scripts, rules, or prescriptive manuals. Because it is interactive and based not on procedure but on appropriate response, this approach cannot be taught in a methodical way. When programs and researchers have tried to quantify the definitions and practices, the differences between problem-solving and trans- formative mediation practice have had to become more solid. How then can family mediation practitioners adopt this approach and integrate it with their own model of practice? How can we know when a practitioner is doing the transformative mediation approach within some reasonable standards for its practice?

Sally Ganong Pope (1996), an established family mediation practitioner and past president of the AFM, describes how these principles helped her change her practice from a more standard problem-solving approach to one where she “invited fortuitous events” of empowerment and recognition to flourish more. She rethought her mediation practice and tried to include the participants more fully in the setup and function of the mediation session. Instead of providing a process to the family where they were passive recipient of her services, she now offers opportunities for clients to participate in the work they came to do. Family mediators who have been practicing from more negotiative and directive, outcome-based, problem-solving, or procedural models will find this a refreshing reminder that even highly competent mediators may need to add dimensions to their practice as it evolves.

One of the critiques of this approach is that it cannot be quantified and delivered as a training commodity or as an expectation in court-connected settings. Although a family mediator might try to have clients provide each other recognition and empowerment as a prescriptive solution, and while novice mediators arrive out of their initial forty-hour training describing themselves as page 131


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