The Value and Limitation of Mediation (ADR)
 (Post-divorce disputes, concentrating on child contact issues)

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

2011

Abstract

The Value and Limitation of Mediation (ADR)

 (Post-divorce disputes, concentrating on child contact issues)

Introduction

In recent times there have been a large number of experts who have advocated the increased use of mediation or ADR (alternate dispute resolution). In fact it has been suggested by Lord Woolf that litigation be considered an option of last resort in Civil Courts. One is prone to agree with this view whether or not mediation of ADR is ultimately successful in resolving, or making just decisions, between disputing factions. While I personally agree with this view, in the case of family problems, mediation can frequently result in failure rather than success.

Unfortunately, ADR, although it should be attempted, frequently fails in achieving a desired end result, especially with family problems such as contact disputes following implacable hostility barring the way to success.  This is most likely to be the case when an absent parent, (mostly fathers), have difficulty in obtaining good contact with their children due to the hostile custodial parent (usually the mother).

A distinction is sometimes made between mediation and arbitration. The result of arbitration is binding in that all parties involved agree to abide by conclusions reached. Psychologists acting as expert witnesses frequently prefer this approach to mediation. This is because no such demands are made with those who participate in mediation such as following the conclusions reached by the mediator or arbitrator. It is in this area that the author has had considerable experience with the Family Courts who have reached certain considerations which are not shared by everyone.

This is that mediation without the “sword of Damocles” hanging over those in dispute is valueless. It must be understood that mediation can only be effective if those in dispute sincerely seek to find a solution and are not intransigent in holding on to their views without considering other points of view. Co-operation and understanding also needs to be sincere, especially in family disputes, that is, contact issues. By this I mean that there needs to be considerable pressure on those in dispute to reach a decision, or be helped to accept a decision, which is then made by the mediator (or perhaps even better by the arbitrator) to be put forward to the judiciary. The important factor is that some kind of decision needs to be reached. This can be best achieved by the expert witness, having studied those in dispute, putting forward a point of view and providing reasonable arguments for the point of view advocated to the Court.

            Steps during the family mediation consist of each party making statements giving their position and why they hold this position. The mediator/arbitrator indicates his independence by noting and acknowledging the individual positions, and by interviewing the individuals in dispute separately, and working toward finding some area(s) of agreement. The areas of disagreement should also be noted and suggestions made as to how these can be changed toward being more  positive . Eventually, after such explorations the parties will be seen together dealing firstly with the areas of agreement. Areas of disagreement, should lead to negotiating the possibility of compromises being reached. Unfortunately this is not always possible in families who harbour implacable hostilities based on emotions such as feelings of anger, rejection, jealousy, selfishness etc. This fact must eventually be reported to the court who must then make the ultimate decisions, hopefully based on what the mediator has found through his efforts.

            Hence, “mediation” becomes somewhat of a substitute for justice via litigation because the requirement for mediation is to in some way is to fetter the individuals concerned once they have access to justice. It must be accepted that mediation is not a panacea but should often be tried first before turning to litigation, or to be part of the litigation process. This however, should be complimentary to justice. It cannot ever be a substitute for justice. This  is because one must admit however reluctantly, that with family disputes mediation most often fails. This is because family disputes are caused by powerful, entrenched emotions, especially in contact disputes.

            The implacable hostilities between the parties result in efforts to manipulate children and expert witnesses to oppose contact with an absent parent as illustrated by the example which follows. This leads to a “power struggle” with a multitude of trickery being displayed where the children become a ‘weapon’ used by a custodial parent, usually against the non resident parent.

            The carrying out of the process of mediation to combat such implacable hostility requires that the mediator communicates to the Court the underhanded and often insincere practices used by the alienator against the alienated parent. Sofly, softly mediation approaches should be used at the beginning of the process. These approaches however, must give way to more firm tactics.

            Hence, the frequently underhanded tactics of the hostile alienator must be revealed to the Judiciary who have the final decision to make. These decisions must curb the alienator by providing a true account of the situation, which an often non residential parent has to face. The Judiciary must consider the following:

1. The long term effects of preventing a loving parent from having good contact with his/her children.
   1. Its impact on the absent parent.
   2. Its impact on the children caught in the middle.
2. The long term effects the successful manipulative parent may learn, i.e. has he/she learned that injustice has won the day and implacable hostility has been successful?
   

The expert witness mediator/arbitrator, being intimately involved with the case, should be able to make suggestions to the court on how to achieve true justice and hope that the Judiciary will both listen and act accordingly. Alas this is not always the case.

            The mediator/arbitrator in his/her report to the Judiciary must put forward to the Court the views of the disputants and state where they have found areas of agreement if any, and where they cannot agree and why this is so. The mediator/arbitrator also needs to point out to the Court if any of the disputants have been seen to agree with the possible solutions eventually proposed by the mediator/arbitrator. Let us illustrate this by an actual case, sufficiently disguised for the sake of anonymity.

Case illustration

Mr and Mrs X have been in dispute over 7 years. At present Mr X has for some time experienced difficulties in having any contact with his two daughters aged 8 and 10. There was implacable hostility between the mother and father, mainly on the mother’s side. She had been given custody after an acrimonious divorce.

The two girls had been imbued over the years with the view that their father could be a danger to them as allegedly he had been to the mother. They had witnessed the father and mother in the past showing extreme hostility towards one another. This even involved physical violence on occasion by both parents towards one another.

All the father wanted was regular contact with both his daughters. He was not opposed to the mother having custody of the children providing she would make it easy for him to see his children by encouraging the two girls to have good contact with him. This the mother professed she had done and claimed that the two girls did not wish to see the father. This was despite the fact that they both had had a good and warm relationship with their father before the parents parted.

The Court ordered that the expert witness (a Psychologist) carry out assessments of the warring factions. The expert witness found that the mother, while professing she encouraged the two girls to have contact with their father was actually alienating them against the father. The mother claimed that she could do no more with the girls to get them to meet their father. The report by the expert witness to the Court revealed the true nature of events. Five mediation sessions were recommended by the expert witness to the Court to try to resolve the situation and this was accepted. Following the required mediation sessions, the expert witness reported that the father co-operated fully by supporting the mother and her role as the custodial parent. Mother however, was intransigent, admitting to the expert witness about her reservations in forcing her daughters to have direct unsupervised contact with their father. The mother was not co-operative with the expert witness during mediation and made all kinds of problems including the fact that the expert witness had behave improperly towards her during mediation. This only illustrated her devious nature to those involved in the case.

            The Court ordered that the girls be able to see and be with their father and the mother very reluctantly agreed. The mother made a number of demands such as that the girls should phone her regularly “to see how things were going and to make certain that they were safe”. Mother also insisted that the girls not eat the food that the father prepared for them.

Father bought his two daughters clothes and toys and took them on outings to museums and other places of interest. The children were interrogated closely by the mother on each occasion they returned to her from seeing the father. They reported that they enjoyed being with the father and wanted to continue seeing him. This did not give the mother a great deal of joy and she plotted to destroy the contact that the children had established with the father. Problems manipulated by the mother followed during the handover of the children to the father. When one of the girls returned home to the mother with a bruise on the arm due to a ‘rough and tumble play’ at the father’s home, in which other children were involved, the mother contacted the police immediately. She also contacted her Solicitor and Social Services. The mother actually knew the truth of the source of the injuries but ignored this as she saw the opportunity to manipulate matters against the father and reported that he personally was a danger to his daughters.

All contact ceased and Police and Social Service investigations took place. The mother lied about what the children had told her about how the bruise had occurred. The father produced witnesses who had seen the boisterous games that were played and which the two girls were seen to enjoy. Despite the girls explaining matters, the Court as a result of a report from Social Services held that the father should cease having contact with his two daughters due to this incident. This was despite the fact that the expert witness after having completed his assessment and mediation sessions, considered that the best course of action, due to the mother’s manipulative and dishonest nature, was for the father to have custody of the two girls rather than the mother as the mother was working totally against any kind of way of rehabilitating the father with his daughters.

The expert witness felt that the decision by the Judiciary was totally unjust when the Judiciary decided that father should for the time being have no contact with his children. The father had done nothing wrong to warrant such a decision. The Judge was undoubtedly influenced strongly by the Social Worker who considered it in the best interest of the children to be in the care of their mother without their father being involved. He also felt that the animosity between the parents affected the children adversely. The Social Services also felt that there may have been an element of doubt as to whether the children were actually safe in being with their father on the basis of the minor injury one of the children suffered when playing at the father’s house.

It was clear to the expert witness that the Judge failed to have the courage to transfer custody of the children to the father, with whom the children began to resume a good relationship. Manipulation, deceit and injustice, as well as implacable hostility had won the day.

This is but one example of injustice committed in the Family Courts. The current expert witness believes that the presence of a well-balances Jury could do much to provide better justice than is currently the case in the Family Courts.