How can mediation be made to be successful in serious family disputes?
(Solving intractable hostility between former partners in contact disputes)

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

2006

Introduction

Solving intractable disputes is essential in order to prevent children suffering from the loss of one loving parent. This unfortunately often occurs after a relationship between partners or parents has ended and disharmony is the major feature. This can affect the child in the long-term and there is evidence that such abuse of failing to involve one of the parents leads to later psychological problems.

The concept of carrying out a process of mediation has long been accepted as of “potential value” in solving apparently intractable hostilities between parties. This is done as much, or even more, for the benefit of the child/children than the two adults. The emphasis, however, must be on the word “potential”. When using the term mediation it is important to add therapy to this term, because it is just that.

While there is the chance for successful outcome, there is also the chance of mediation/therapy being a dismal failure. What this paper attempts to answer is what to do when this occurs. In what follows, there will be a discussion of how and when mediation/therapy can result in valued improvement between warring factions, and when such harmony or improvement will not occur. This is regardless of the experience and skill of the mediator/therapist.

One of the unfortunate results of an acrimonious divorce or separation is a deep and enduring hostility between the parents. When there are children, the children are more than likely to be affected. Once there is physical separation, the hostility is less direct but still involves the children in the dispute. Mediation/therapy is often the way to resolve the issues of implacable hostility manifested by one or both former partners. The custodial parent always has the advantage due to the total control of that parent over the child. The custodial parent often disallows contact of the non custodial, and non resident parent with the children. This is more often than not likely to lead to the children, who will reside with the resident parent, be it mother or father, claiming not to want contact, or very limited contact, with the absent parent. As an expert witness, I am often involved in assessing such clients for the courts. This can result in mediation/therapy with the intention of resolving the intractable hostility between the parents.

The psychologist involved in such cases usually faces great difficulties in seeking to resolve apparently intractable hostilities. This would seem to be the only way forward when the parties remain entrenched in their dispute, which affects the children adversely now and in the future. The only course of action is to promote the will of the parents to need to resolve the basic differences between themselves for the benefit of their children. This is one of the main objectives of the mediator/therapist. It is a goal fraught with danger and difficulties as will be noted when we consider the fact that mediation/therapy does not always work to resolve the hostility between former partners. Added to this pessimistic view is the fact that the Judiciary appears to be helpless in the manner in which it deals with such intractable problems. Despite this however, Judges will often support the opportunity for mediation/therapy to take place.

Let us now view when mediation is likely to be effective.

Effective mediation

Effective mediation results when the mediator can convince the inimical parties that their children would benefit as a result of the adoption of a more conciliatory attitude and behaviour towards the other party. Since both parents claim to love their mutually, created offspring, it would seem sensible and rational to replace their negative feelings towards one another by promoting what can only be called “entente cordiale”. Children benefit from seeing their parents civil, if not friendly, towards one another despite the break-up of the parents’ relationship. Mediator/therapists must strive to inculcate an overwhelming desire in these parents to co-operate in order to leave as little damage in their children as possible. Children are happy and are more likely to mature with positive feelings rather than be filled with negative attitudes when parents can somehow manage to get along.

Some parents can get along, when the will is there to do so, and turn acrimony into harmony. Not only do their children benefit from this, but the parents themselves reduce or eliminate the bitterness they feel towards one another. Turning negative attitudes and behaviour into positive ones can only be achieved through the skill of the mediator but this must be combined with the presence or promotion of the good will of both partners.

It is important for the mediator to concentrate on individual parents initially by seeing them on their own. This may take a number of sessions before seeing them together. This prevents old grievances being raised and a ‘slanging match’ occurring. It is important to make clear to the parents that there should be no discussion of past events which led to the break down of their relationship and the resulting disharmony. This in turn has frequently resulted in parental alienation and sometimes what is termed Parental Alienation Syndrome (PAS). This leads to difficulties of contact between the absent parent and the children. Hence, a structured agenda needs to be put together in advance of the joint meetings. The mediator/therapist must quickly intervene if the boundaries of the agenda considering the present and future are breached.

Having agreed, in principle, it is then essential to work out and stick to a programme of who will be with the children and when, and for how long. Consideration must also be given to the handover and handing back of children from one parent to the other. Ideally, if the parents can get on with each other this could be a direct procedure, but there are often problems when hostile parents meet for the purpose of handing over their children. This therefore is frequently an area which creates unnecessary discord. It is therefore necessary to involve a third party to carry out the handing over and handing back of children. This is sometimes necessary in order to prevent acrimony between the parties which the children of course observe. At other times, the mutual agreement between the parents and a certain amount of ‘give and take’ can result in very favourable scenarios which benefit both the children and the parents.

Ineffective mediation

Ineffective mediation/therapy results predominantly in child and family disputes where there is implacable hostility between the parents. This hostility has often increased over a period of years due to the long-term effort of one excluded parent seeking access to his/her child/children, or seeking to increase the access, that he/she already has. There are frequently false allegations made about the non custodial parent, usually the absent parent, such as: 1) He/sheis violent and aggressive, that is, he/she has committed domestic violence; 2) he/she abuses the child emotionally or sexually; 3) he/she is unsuitable for various reasons to be involved in contact with children.

In addition to these three areas there is an increasing tendency to state that a child/children do not wish any or direct contact with the absent parent. Such a decision of the child/children is frequently based on the alienation of the child due to programming by the custodial parent, this having resulted from the intractable hostility towards the absent parent.

Children will often interpret the failure of the custodial parent to actively and sincerely encourage the child/children to have contact with the absent parent, to be for a very good reason. They feel there may be a danger from the absent parent towards himself/herself, or that the absent parent has been really bad to the custodial parent. Such subtle and indirect influences presage that the child becomes more and more unwilling to seek good contact with the formerly loving parent, but now absent parent. The child infers that the custodial parent is hostile to the absent parent and there must be a reason for this. The child therefore identifies with the views of the custodial parent, after stating frequently in and out of court, “I don’t need my father/mother……I only need my father/mother”, that is, the custodial parent is solely preferred.

Judges are therefore in a dilemma being uncertain whether to accept, without reservation, the child/s decision in this matter, or to try mediation in order to seek a way out of this impasse. Mediation/therapy may possibly change the child’s view of the absent parent but this is not guaranteed. Unfortunately, the efforts of the mediator/therapist is more likely or not to be undermined continually and effectively by the recalcitrant custodial parent. He/she will tend to continue their process of denigration of the absent parent and the child becomes a virtual victim, identifying with the delusions of the programming parent and therefore no longer wishing direct or good contact with the absent parent.

What can be done by the Judiciary?

The only solution to the injustice and emotional abuse of the child by the controlling custodial parent is for the psychologist involved to make this point clear. It is also important to further make it clear that there are only two possible resolutions; one is a just one, the other one is not. The first is to accept what the alienator is doing and the child’s reactions to this, and to diminish or totally exclude the alienated parent from the good, positive contact with the child. This in many ways is unjust toward the non custodial parent. The second, which is the just and right way, is to put pressure on the alienator to actively and sincerely encourage the child to have contact with the absent parent. Such pressure must, however, not merely be an idle threat. It must be backed up with resolute action should the threat not be heeded.

At present Judges rarely act against the parent who flouts a decision which is punitive towards the custodial parent especially if that parent is the mother! It is much more likely that a Judge will at most admonish, or encourage, and only sometimes threaten. This permits an obdurate programmer to flout a decision made by the court. This judgement however, could become law if the Judges were so disposed. Judges could threaten and eventually penalise via fines, taking children into care, imprisoning the brain-washing parent, or ordering a change in custody. The mere threat of any of these make a custodial parent co-operate in truly encouraging children to feel safe and have contact with the absent parent. The threats, can however, not be idle in nature. It is my view that only the most pathologically disturbed custodial parents would fail to obey the ruling that they must encourage their children to visit the absent parent and to feel free to have good contact with that absent parent. This way the long-term effects on children growing up with major psychological problems will be prevented, because they have not been prevented from having a positive relationship with an innocent and loving parent.

Summary and Abstract

More and more parents divorce or separate. At present it is close to 50%. When there are children, these are often used as pawns following an acrimonious separation or divorce. This results in children frequently being programmed against an absent parent who has little control. Children suffer, in the short, and even more in the long term, deep psychological problems as a result of the hostility between the parents.

Judges sometimes suggest mediation/therapy to seek to resolve the implacable hostility between the parents. This can work, providing both parents cooperate for the benefit of their children. Such mediation/therapy often fails when the Judiciary does not include a punitive sanction against the parent who fails to be sincere in cooperating with the mediator/therapist. There are a number, of what may seem to be, drastic procedures available to the Judiciary; just actions which Judges are, on the whole, reluctant to take.