Impasse-directed mediation with high conflict families in custody disputes

Impasse-Directed Mediation With High Conflict Families in Custody Disputes

Linda E.G. Campbell, Ph.D. Janet R. Johnston. Ph.D.

In this article we review current mediation models for resolving custody and visitation disputes and their success rates and identify the characteristics of a subpopulation with poor outcome: those parents who are in high conflict, ambivalent about separation, emotionally distressed, and limited in their capacity to protect their children. Based on an understanding of what creates impasses, and how children are aflected, we present a new model of mediation for this subpopulation. Preliminary outcome data using this model with 80 families is reported. Implications for establishing a network of services for divorcing families are discussed.

INTRODUCTION

Prevailing Models of Mediation

Growing dissatisfaction with the adversarial manner in which family disputes are processed in the courts (Bass & Rein, 1976; Bohannon, 1970; Holman & Noland, 1976), and growing empirical documentation of the psychologically debilitating effects of separation and postdivorce conflict on both parents and children (Emery, 1982; Hetherington, Cox, & Cox, 1982; Wallerstein & Kelly, 1980) have motivated both legal and mental health professionals to develop new services aimed at resolving these disputes and preventing their unhappy sequelae. Over the past decade, mediation of custody and visitation disputes has been widely proposed and instituted as an adjunct or alternative to family court investigations and litigation.

Linda E.G. Campbell, Ph.D., and Janet R. Johnston, Ph.D., co-Directors of the Child and Family Divorce Counseling Service, Psychiatric Services, Children’s Hospital of San Francisco. (Dr. Campbell is a psychologist and Dr. Johnston is a sociologist/cliical social worker). Correspond- ence and reprint requesrs should be addressed to: Linda E.G. Campbell, Ph.D., Child and Family Divorce Counseling Service, Children’s Hospital of San Francisco, P.O. Box 3805, San Francisco, CA 941 19. Funds for this paper were provided for by the Zellerbach Family Fund and the San Francisco, Moms Stulsaft, and Van Loben Sels Foundations. Partial support for Janet R. Johnston, Ph.D., was provided by a NIMH Fellowship in Social Structure. Personality and Mental Illness. Department of Sociology, University of California, Berkeley.

Behavioral Sciences & the Law. Vol. 4, No. 2, pp. 217-241 (1986) @) 1986 John Wiiey & Sons, Inc. CCC 0735-3936/86/020217-25$04.00

218 Campbell & Johnston: Impasse-Directed Mediation

The advantage of a mediated agreement, in contrast to an arbitrated settlement, is that it is more likely to yield workable, personally satisfying, individually tailored agreements, which are more likely to be honored by participants and which are more considerate of the child’s best interests. Perhaps more important than the product of a better settlement is the potential for the mediation process to provide divorcing parents with a “therapeutic and learning experience” (Sander, 1983) which facilitates the development of a cooperative relationship and provides a blueprint for managing future conflicts over their children.

The rapid growth of mediation services in both the public and private sectors (Brown, 1982; Pearson, Ring, & Milne, 1983) has generated a proliferation of models of the mediation process, some better articulated than others. In fact, this new, expanding profession is now suffering a form of identity diffusion in which there are hot debates over a number of issues pertaining to the nature of mediation, what are and what are not legitimate mediation goals and methods, and who is and who is not qualified to offer the service.

Despite important differences between the models (some of which will be described later), there is a dominant emerging consensus that mediation is distinct from therapy and counseling (Kelly, 1983; Musty & Crago, 1984) and distinct from the practice of law (Folberg & Taylor, 1984). The general trend is to view mediation as an issue-oriented, goal-directed, problem-solving endeavor, with the primary aim being to resolve or manage interpersonal conflict so as to reach agreement. The resolution of conflicts of interest between parties is assumed to come about through the process of balancing power between the disputants, while clearly defining issues, generating options, ordering priorities, and then negotiating and bargaining differences and alternatives. This economic model of the decision-making process, which is based on principles of conflict resolution drawn from the theory and practice of mediating industrial and labor disputes, but modified for the particular problems of the family (Herman, McHenry, & Weber 1979), assumes a psychological model of rational man. The assumption is that by providing the right structure and techniques, contesting parents can become rational, focused, and goal-oriented. Hence, negative emotional expression and interpersonal conflicts that engender irrationality are seen as interferences and obstacles to reaching agreements.

The manner in which these irrational emotional intrusions and conflicts are dealt with varies markedly between the models and among practitioners and is, therefore, a source of controversy in the field. On one end of the spectrum are those who view mediation solely as a form of pragmatic decision-making between parties with a conflict of interest (McIsaac, 1983). This group, which has its roots in the pioneer work of Coogler (1978) provides a very structured, systematic approach to the production of a written, legally enforceable agreement in which couples basically agree to follow a rational procedure as a means of resolving disputes. The mediation deals only with legal and practical issues under dispute and is intensively goal directed to this end. The structure of the sessions provides controls which contain emotions, and the clear focus on negotiation provides direction and momentum. Emotional blocks or disruptions are technically handled

BEHAVIORAL SCIENCES & THE LAW

Campbell & Johnston: Impasse-Directed Mediation 219

by identifying and labeling them as such and reminding parents such expressions are prohibited, thus directing them back to the task at hand. When feelings are unable to be contained, the process ceases with a “time out” for working on the emotional issues elsewhere, if necessary, in a separate counseling or therapy setting.

In the middle of the spectrum are a group of mediators who recognize that for some divorcing parents, feelings are not so easily set aside, but rather overwhelm rational aims and fuel resistances to negotiation and settlement. There is an explicit recognition that an “emotional divorce” is being achieved at the same time as the legal divorce. This group, represented by interdisciplinary comediation teams of legal and mental health professionals (Folberg &Taylor, 1984; Gold, 1981; 1982; 1984; Kelly, 1984) and other family system’s-oriented mediators (Saposnek, 1983) addresses both the psychological and legal issues simultaneously in mediation. Psychological interventions (including reflecting, labeling, supporting, clarifying underlying feelings or “real goals, ’* reality testing and confrontations, reframing and refocusing behavior) are used primarily to manage and contain emotional conflicts. Hence, while emotional expression within guidelines is permitted, the primary aim of such interventions is to encapsulate disruptive feelings so that the mediation of an agreement can proceed, the production of which is the primary goal.

On the other end of the spectrum is a group of mediators (e.g., Bienfeld, 1983; Campbell & Johnston, 1985; Cleveland & Irvin, 1982; Duryee, 1985; Milne, 1978; Waldron et al., 1984) who perceive their role, especially in high conflict cases, as both counselor and mediator. Here mediation is viewed as a therapeutic endeavor with the primary aim of moving the family into a new postdivorce family structure and assisting individuals emotionally through their divorce transitions. The actual agreements made with respect to property, finance, custody and access, then is a subgoal, and a reflection of these deeper family structural and psychological changes. Recognizing that unresolved conflicts, rather than realistic needs, motivate some negotiation strategies and custody requests, the aim of these “therapeutic mediation models” is to directly help parents examine the processes (underlying individual or spousal psychodynamics and family conflicts) that interfere with mediation and the longevity of its agreements. The most clearly developed model of this kind in the literature is that of Milne (1978) extended by Waldron et al. (1984), where during mediation, the history of the marriage and separation is reviewed with the couple in an attempt to foster the parents’ “psychic divorce” (Kressel & Deutch 1977).

A second important source of controversy within the practice of mediation revolves around the neutrality of the mediator with regard to children’s needs and best interests. The strongest position is that the mediator must be impartial and act as a broker or a catalyst in the resolution or management of conflict, with no vested interest in the outcome other than it being a fair and amicable settlement in line with current laws. The predominant models in the literature assume that most parents know what is best for their children and will act on this knowledge on the children’s behalf when issues are clearly defined (Coogler, 1978; Gold, 1981;

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Haynes, 1978; 1982; Kelly, Zlatchin, & Shawn, 1984). These mediators share the belief that the settlement of parental conflicts will have beneficial consequences (cessation of hostility and improved parenting) which will “trickle down” to the children. Hence the authority of parents in making their own decisions is stressed and is buttressed by an underlying philosophy that the state has no right to intervene in private orderings or to explore what is in the best interests of the child when a marriage contract is dissolved (Mnookin & Kornhauser, 1979). Consequently, mediation is viewed primarily as resolving a two-party dispute betwebn parents and children need not be involved. In fact, according to Pearson et al. (1983J, with the exception of Minnesota where 66% of children are seen, in the large court mediation programs they studied, children were rarely interviewed (Los Angeles 28%, Connecticut 15%).

On the other hand, in the middle of the spectrum are a large number of mediators who take a more moderate stand on this issue. In recognition of the mounting clinical evidence of the “diminished capacity to parent” at the stressful time of separation, and of the negative impact of divorce disputes on children (Hetherington, et al., 1982; Wallerstein & Kelly, 1980). these mediators question the assumption that parents can always contain their anger, wishes, and conflicts sufficiently to recognize and respond to the needs of their children and maintain a coparental alliance. Hence education and counseling of parents with respect to their children is seen as a legitimate and important part of the mediation of custody and access agreements (Bienfeld, 1983; Bonney, 1986).

Finally, on the other end of the spectrum are mediators who identify a subpopulation of highly conflicted parents in highly contested custody disputes and view these parents as seldom able to realistically consider their children’s needs as separate from their own. Such parents have a dramatic distrust and disrespect for each other’s parenting and intentions, and hence little capacity for parental cooperation. It is argued that for the sake of the children of such disputes who become both weapons and trophies in the parental war, mediators must be prepared not only to educate and counsel parents, but even strongly advocate the child’s interests during the mediation (Bienfeld, 1983; Campbell & Johnston, 1985; Hopkins, 1982; Huntington, 1981; Wallerstein, 1982). Furthermore, these children may need direct therapeutic interventions to help them extricate from and cope with the enmeshed family disputes.

In summary, the distinguishing features of most custody mediation services at the present time are that they are short-term, issue-oriented, decision-making forums, where a third party endeavors to foster parents’ self-determination and efficacy in resolving their own divorce-engendered problems. The primary goal is the production of a legally enforceable coparenting agreement with respect to custody and access. Any therapeutic benefits of the mediation process are regarded as secondary and serendipitous. While there is some debate about the management of emotional issues during mediation, the assumption of all present models is that with appropriate interventions (usually clarifications), parents can put aside irrational emotional conflicts and pursue a rational, reasonable, or compromised solution. Moreover, while there is some debate as to the mediator’s neutrality with


Campbell & Johnston: Impasse-Directed Mediation 22 1

respect to children’s best interests, in general most mediators do little more than educate parents about children’s needs and viable custody/access options. They seldom intervene directly with or on behalf of the individual child.

Outcomes of Mediation

The outcome research for custody mediation, like the field, is in its infancy with only a few systematic evaluations, most notably the work of Pearson and her colleagues (1979; 1980; 1982; 1983; 1984). Sprenkle and Storm (1983) and Koch and Lowery (1984) provide reviews of the research quality of published evaluations.

With respect to settlement rates produced by mediation, there is some convergence of findings. The Denver Custody Mediation Project achieved full agreements with 58% of cases (Pearson & Thoennes, 1982). In smaller studies, Tall and Johnston (1982) reported 48% reached full complete agreements; Waldron, et al. (1984) reported 60% and Saposnek, Hamburg, Delano, & Michalson (1 984) reported a higher rate of 75%, but with a 54% compliance rate at 1 year followup. In addition to these studies, a number of large court systems and their clients have cooperated in an evaluation of their mediation services. Toronto’s first study yielded only a 22% success rate, whereas a later study gave 70% agreement, 54% of these being complete (Irving, et al. 1979; 1981). Clients of both Los Angeles County and Connecticut courts reported 60% agreement rates, 40% and 35%, respectively were permanent and complete (Little, Thoennes, Pearson, & Appel Ford, 1985; Lyon, Thoennes, Pearson, & Appelford, 1985; Pearson & Thoennes, 1984). Clients of Hennepin County, Minnesota courts reported 70% settlements, 40% being permanent ones (Cauble, et al., 1985). On the average, these settlements were achieved in only three to four sessions (Pearson & Thoennes, 1984). While these success rates are very positive compared with outcomes in the adversary system, we note with great concern that 25%-65% of divorcing parents fail to fully settle custody disputes using present mediation services. However, rather than conclude that mediation per se is not effective for a large proportion of families, we will contend that the predominant kind of mediation models presently available may be inappropriate for this subgroup.

As noted above, the rationale for mediation compared with the adversary process is that it is more likely to result in improved parental cooperation, communication, and decision-making capacity for future negotiations and family reorganization. Moreover, it is purported to produce agreements that are more responsive to the individual child and the unique family situation. Unfortunately, most of these claims either have not been empirically evaluated in the outcome studies to date, or show only weak and ambiguous support. In general, while clients express relatively high rates of user satisfaction with the process and with agreements reached, finding the experience fair, equitable, and thorough (Pearson & Thoennes, 1982; 1984), and while they are less likely to relitigate (Bahr, 1981a; 1981b; Irvinget al., 1979; 1981; Milne, 1979; Pearson & Thoennes, 1982), there

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is no evidence that mediation has been “able to produce any dramatic effects in terms of improved spousal cooperation, coparenting, and smooth visitations” (Pearson & Thoennes, 1984 p. 46). Furthermore, while mediation results in more joint custody agreements (Koopman et al., 1984; Perason & Thoennes, 1982), in the only study that directly evaluated child adjustment (Pearson, et al., 1984), there was no evidence that children fared better from their parents engaging in the mediation process, or from the settlements that resulted, compared with the traditional adjudicatory process. This dearth of findings is of serious concern. However, we will argue that the prevailing models of mediation may not be equipped to improve ongoing coparenting and child adjustment, and the claims for doing so may be overly ambitious.

Characteristics of Families Who Fail to Mediate

To develop our thesis that the present rational decision-making models of mediation may be inappropriate for a significant group of divorcing families in that they do not enable parents to reach stable settlements and additionally do not adequately address the important issues of building ongoing parental cooperation and protection of vulnerable children, we will review the characteristics of those who fail to mediate in contrast to those who are successful.

While there are few empirical studies, there are many qualitative descriptors of the subpopulation who fail to mediate. Kressel et al. (1980) have indicated that suitability for mediation is tied to the degree of ambivalence about divorce, capacity to communicate, and the level of conflict. Couples exhibiting “enmeshed” patterns of conflict (extremely high levels of overt conflict and ambivalence about separation) were most resistive to mediation efforts and often bitter and dissatisfied with any settlements they did reach. These couples engaged in long, acrimonious and frustrating negotiations, and haggled over trivia. Their relationship was characterized by mutual blaming and squabbling from which they appeared to derive an intense and continuing gratification. Another group of “autistic” parents (identified by mutual emotional and physical avoidance of overt conflict and ambivalence about separation) had equally poor outcomes in mediation. Agreements were often dictated in explosive terms by one party with the other tearfully assenting, and later there was little satisfaction or compliance with the terms of the settlement. Kressel et al. (1980) attribute the poor outcomes in both types of couples to the mediator’s failure to deal with the deeply mixed underlying emotional issues and ambivalence between the divorcing parents. Mediation worked best for couples who had moderate or low levels of conflict, direct and open communication, and who were emotionally ready to disengage.

Pearson and Thoennes (1980) concluded that mediation may be inappropriate for parents with severe emotional pathology andor serious personality disorders. In accordance with Kressel et al. (1980), they also noted that agreement making may be obstructed by high levels of anger andor ambivalence over the decision to divorce. By contrast, successful mediation occurred with parents who were less



blaming, less negative, more reflective, and empathic with each other. Where the dispute was relatively recent and parents had a prior ability to cooperate, there was also more success (Thoennes & Pearson, 1984).

Waldron et al. (1984) found that where parents held rigidly to their own positions, were categorical and concrete in their thinking, were unable to see any good in their ex-spouse, and envisioned no solution but their own, mediation was ineffective. Furthermore, those couples caught in the “denial stage” of the emotional divorce who harbored reconciliation fantasies, and those couples locked in the “phase of anger and blaming” were least able to benefit.

In addition to the above client characteristics of failed mediation from formal outcome studies, several large court systems have formal policies that mediation is not appropriate in some or all of the following situations: where couples are chronically litigious, where there is domestic violence, when there are allegations of child abuse and molestation, and when one or both parents are alleged to have serious psychological difficulties (Cauble et al. 1985; Little et al., 1985; Lyon et al., 1985).

Finally, research on children of high conflict families (Johnston Campbell, & Mayes, 1985b; Johnston & Campbell, 1986; Wallerstein, 1982; Wallerstein & Kelly, 1980) has found that parents who are highly enmeshed in conflict have little ability to protect theirchildren, and those who are emotionally disturbed have little capacity to separate their children’s needs from their own. Not only are they less likely through mediation to reach agreements, but the arrangements may be made with little respect for the child’s best interests. Despite a mediated, legal settlement, some parents continue to battle over visitation and child care, exposing the child to long-term postdivorce parental conflict which has serious mental health consequences (Emery, 1982; Hetherington, Cox, & Cox, 1982; Wallerstein & Kelly, 1980).

The formal outcome studies of mediation and court experiences therefore indicate that the present rational decision-making models of mediation have been ineffective with “enmeshed” “highly conflicted” couples who are ambivalent about their separation and/or who have severe pathology or personality disorders. Nor are the present models considered appropriate for dysfunctional families (as evidenced by violence and abuse). Further, the children of such families are particularly at risk because their parents are often severely limited in their capacity to cooperate and respond appropriately to their needs.

It is clearly evidence that misplaced and escalating personal and spousal conflicts, emanating from long-term difficulties or from separation-engendered conflicts, result in resistances to mediation, problematical negotiation strategies, and unrealistic custody demands. Parents who aim to “spite and punish one another” (Mnookin & Komhauser, 1979), whose desire to “win the divorce at all costs,” whose “need for revenge and retribution is stronger than the wish for an equitable settlement” (Brown, 1982), who harbor intense ill-will, unremitting anger, and chronic distrust, or who nurture ambivalent reconciliation fantasies (Milne, 1978; Saposnek, 1983; Wallerstein, 1982) are not able to use a rational

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decision-making process. They cannot put aside or contain these feelings, rather they will subvert the process in the service of their emotional and interpersonal conflicts.

Rather than characterize these high conflict families as failures of mediation, we propose using their characteristics as descriptors of a population who require new methods and models of mediation. Rather than enjoining them not to fight or trying to avoid and contain their overwhelming emotional conflicts, we contend that the point ofdeparture for a more appropriate mediation model is some understanding of why these parents are locked into chronic disputes. Based on this understanding, what is needed are strategic focused interventions aimed at their impasse which will prepare them to negotiate and make decisions more rationally. Rather than assuming they know what is best for their children, we argue that their children need to be clinically assessed and the mediator be prepared to counsel and educate parents as to their needs and to advocate on their behalf.

The balance of this article first, will briefly describe some of the dynamics of impasses to the resolution of custody and visitation disputes; second, present a new mediation model designed especially for these high conflict divorcing families; third, provide preliminary outcome data on this new model’s effectiveness; and fourth, discuss implications for service delivery to divorcing families.

A STUDY OF HIGH CONFLICT FAMILIES

The Study’s Population

Both the impasse notion and model of mediation were derived from an ongoing study of 80 divorcing families with 100 children (aged 6 months-1 2 years) referred to our service for mediation from local family courts by the judge or court mediators. Despite brief mandatory mediation efforts in court, these parents were unable to settle their differences over their children or continued to dispute regardless of a negotiated agreement. The service offered was an alternative procedure to court evaluation and trial and hence was a last resort before litigation.

The families reflected the major racial and ethnic groups in California: white 64%, Hispanic 13%, black 8%, Asian 8%, others 7%). They were predominantly of low-middle income (one-third were out of the workforce) and hence were facing fairly severe economic stresses with their divorce transition. DSM I11 ratings by the counselor-mediator and a second clinical psychologist indicated that 64% had personality disorders, 27% had personality disorder traits, and 3% were psychotic. These diagnostic ratings should be viewed with caution because it was difficult to assess what was ongoing psychopathology and what were stress reactions to the divorceldispute. Although parents had been separated on the average 2 years, 3 months (range 0-10 years), less than one-third had obtained a final divorce.

These families had engaged in fairly long-term disputes over their children (average duration: 1 year, 5 months (range 1 month-8 years). Over half the families were repeated users of the court. As measured by the Strauss Conflict Tactics Scale (Strauss, 1979), more than two-thirds had been physically



aggressive towards their ex-spouse in the past year (average once a month) and they verbally aggressed or abused one another on the average once weekly. Custody was the major point of contention. Apart from this, in order of importance, according to a Content of Conflict Checklist, parents complained about a lack of communication with the ex-spouse, poor quality of child care provided by the other parent, problems with access, and, of least importance, financial issues. Given the brevity of contact between these individuals (a large majority assiduously avoided each other and met only during the child’s transfer for visits), there was a high likelihood that each meeting would be fraught with conflict. During these contacts brief cryptic orders, accusations, and complaints were exchanged along with the child.

Couples, therefore, met many of the criteria used to predict poor prognosis in mediation: they were enmeshed, litigious, high conflict parents who were ambivalent about separation, and had moderately severe pathology, personality disorders, or stress reactions. They entered mediation with high levels of anger and prenegotiation conflict, and to varying extents had problems separating their needs from their children’s.

Impasses to Resolving Custody and Access Disputes

Our work with each highly conflicted couple in the project began with the question: Why is this particular family vulnerable to chronic or intermittent disputes? In response to this question, we developed the concept of the divorce transition impasse which provides a framework for considering what is blocking or preventing a family’s resolution of a dispute. Generally, we view the divorced family in the context of its social network as a system in the process of transition. While “normative disputes” are viewed as part of the process of family reconstruction during divorce, the inability to settle a dispute is seen as symptomatic of the family system’s resistance to change and indicative of homeostatic mechanisms predominating within the parents, the child, their interaction, andor the wider social system. Where there are chronic disputes, the normal process of change and recovery is stymied. Parents are unable to make use of the divorce to resolve issues within or between them and are fixed or frozen in the transition, not psychologically married, separated, or divorced. In effect, the custody dispute becomes their new relationship. We conceptualize the impasse in terms of a system’s homeostasis, resulting from pathological, outdated, or inappropriate family rules between parents, children, and significant others, and/or generated by defensive and adaptive maneuvers within the individual parents in the service of maintaining or regaining their intrapsychic equilibrium.

Impasses are typically multileveled and multilayered phenomena with elements of the impasse occumng at three levels of analysis-external, interactional, and intrapsychic. That is, we conceive that parents can be stalemated on any or all of three levels, in a mutually and reciprocally reinforcing manner. To illustrate our theses from our data, we will first identify critical factors at each level which contribute to the impasse. Since each of these factors has been developed more

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fully in separate papers (Campbell Mayes, & Johnston, 1985; 1986; Johnston, Campbell, & Tall 1985a; Johnston & Campbell, in press; Johnston, in press), this will only be a brief summary. Second, we will describe some typical impasses, showing how these intrapsychic, interpersonal and/or external factors converge to lock a dispute in a systemic manner. Third, we will show that identifying the impasse allows for more focused strategic interventions in the system of disputing relations.

At theexternal level, some custody disputes were initiated and/or maintained by the involvement of significant others: extended kin, new partners, mental health professionals, the bench, and the bar. With the deterioration of the mamiage, separating parents turned to others for practical and emotional support, encouragement, and advice. Often this support came with a price: interferences, obligations, and counterdemands which provoked stress and fueled disputes. More commonly, hearing only one negatively biased version of the divorce situation, these significant others became outraged, sought to right the wrong, and help the “victimized. ” Not only did they form string alliances with and fight on behalf of the “aggrieved party, ” but in so doing they unwittingly confmed these negative, polarized, distorted views of the ex-spouse, setting the stage for long-term disputes over the children. In this way the social networks of the parents were incorporated into the dispute and at the same time these supportive others solidified, maintained, and stabilized the fight.

In the case of large kin networks, especially among some ethnic minorities, we found “tribal warfare” could be generated between opposing kinsmen on behalf of each disputing parent. Where mixed racial marriages were ending, the parent’s return to the family of origin created conflicts over the child’s religious and cultural heritage that had never previously been at issue. Alternatively, unrelated agendas emanating from the larger kin network were easily displaced onto or incorporated into the custody dispute. For instance, difficulties in a new marriage or emotional conflicts with a new stepparent at times were projected or displaced onto the ex-spouse, who was scapegoated or blamed for the conflicts. Long-standing hostilities between parent and grandparent in several cases activated the dispute over the child’s custody. Parents were diminished and criticized by their relatives, some of whom crossaligned with their ex-mates. In these cases, the custody and access suit were actually a bogus, but nonetheless a “hot issue” because they had become inextricably fused and intensified by earlier unresolved conflicts between parent, kin andor significant others.

Because of their advocacy role, attorneys have long been implicated in the escalation of family disputes within the adversarial system. What has been less obvious is the role of other helping professionals in fueling conflict. Coalitions with mental health counselors were germane to some particularly entrenched disputes. Some therapists, who saw only one of the parents, encouraged uncompromising stands, reified distorted views of the other parent, wrote recommendations, and even testified on behalf of their client with little or no understanding of the child’s needs, the other parent’s position, or the coupldfamily dynamics. In some cases, mental health counselors of each parent



squabbled between themselves, taking on the characteristics of the disputing parties.

Another potent external instigator of prolonged custody conflicts was the court itself. Judgments from the bench that were basically premature or unwise, based on insufficient data or punitive reactions to an angry, unreasonable parent’s demands, set up unstable and unworkable access arrangements. Moreover, the authority and judgment of the court often had powerful symbolic meaning to parents. Unless great care was taken in interpreting the reason for court decisions, court outcomes functioned to legitimize each spouse’s view of the other and hence solidified their positions with the winner being the ‘‘good parent” and the loser the “bad. ” Often the loser felt compelled to fight for vindication.

At the interactional level, disputes were broadly of two kinds: those that were the legacy of a destructive marital relationship and those that were the product of traumatic and ambivalent separations. In the first case, the quarrels between parents were clearly a continuation of the marital feud, where over the years they had deftly learned to unhinge each other’s defenses and provoke each other’s vulnerabilities in a series of stereotyped transactions that were mutually destructive. More commonly, it was the second case, the events or fact of the separation which set in motion the chronic discord between the parents.

Couples who experienced particularly unexpected, traumatic separations (sudden desertion, humiliating involvement of another lover, uncharacteristic violence) and who fled the marriage with no talking through or without explanation, provoked in one another cycles of desperate reactions and counter-reactions (e.g., hysterical outbursts and physical struggles, child and possession snatching, substance abuse, and suicide or homicide threats and attempts). The enormous betrayal of trust and these outrageous (counter) reactions formed the basis for the redefinitions spouses naturally begin to make of each other at the time of separation. Consequently, a negatively polarized reconstruction of the identity of the ex-spouse was born, reified by the consensual support of separate family and friends. There was a sense of discovery of who the ex-spouse really was, i.e., helshe was, in fact, “dangerous, crazy, and fundamentally untrustworthy. ” Without corrective feedback, these new “understandings” set in motion long-term disputes over children because the parent was now compelled to fight consciously and righteously to protect the children from the “bad, immoral, or neglectful influence” of the other parent. Years later, the disturbed spouse(s) could have regained their psychological balance, were it not for these negatively reconstructed images which remained fixed and frozen, scripting defensive avoidance of each other and periodic quarrels over the children.

Couples who are extremely ambivalent about separation have long been recognized among those who fail to settle the divorce, and our findings are of no exception. A subgroup of ex-spouses seemed to maintain idealized or positively polarized views of each other and engaged in a never-ending search for ways of holding together their shattered dreams. They seemed caught in a repeated cycle of mutual engagement, progressing towards intimacy, disillusionment, disappoint- ment (as their expectations were not realized), separation and avoidance. Planning

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for the care of their children was painful because it necessitated renewed contact, and triggered reengagement. Their idealization of each other seemed connected to their original coming together. These were often highly erotic relationships, or the first “earth-shattering” love experience. Some had met each other at highly vulnerable times in their lives (e.g., when teenagers or when very ill), others felt they had a special mission to accomplish with respect to each other. These couples could not live together, nor apart, and so their relationship was constrained by repeated separations and promising reunions, periods of intimacy and outrage.

At the intrupsychic level, there are a number of core psychological conflicts which unconsciously motivated child custody disputes and directly hampered parents’ capacity for rational decision making and cooperation. The separation experience evokes a well-known series of feelings of humiliation, loss, helplessness, guilt, and anger. Divorcing parents have differing capabilities to manage and integrate these divorce-engendered feelings depending on their preexisting character styles and defensive structures, and depending on specific early childhoodband more recent traumas. Most high conflict litigating parents are among the more psychologically vulnerable.(as evidenced by the fact that a large proportion have indicators of personality disorder according to DSM I11 ratings) and are less able to manage these feelings which are projected or acted out in their relations with others. These unresolved feelings became inextricably confused with the reality tasks of the divorce, making the latter more difficult to accomplish. Disputes are erected to help maintain or restore delicate psychological balances.

With respect to managing the intolerable humiliation of rejection inherent in the separation, parents to varying degrees sought custody to restore self-esteem and to have themselves acknowledged or vindicated as the “good or better” parent. Others, more narcissistically wounded, sought to rid themselves of any vestige of blame by proving the other parent “bad.” In cases of more extreme psychopathology, parents experienced the spouse’s desertion as a total, devastating attack and developed paranoid ideas of betrayal, exploitation, and conspiracy. Their dominant motivation was retaliation and punishment of the offending spouse. They sought custody through the courts in order to be publicly and “legitimately” vindicated. Unfortunately, their hostile, aggressive stance and uncompromising views meant their claims were often received with little sympathy. Any public questioning of their rigid stance increased their paranoia and redoubled their need to fight.

Some parents, vulnerable to loss, could not acknowledge feelings of sadness and m o m the ending of the marriage. Instead they covered their grief with anger, warding off sadness by embroiling their spouses in disputes. These parents had often experienced eariier traumatic losses (death of a parent, sibling, or child; abortions; or loss of a previous child). They stalled in mediation by refusing to settle anything which could end the marriage. Fighting and arguing were a way of maintaining contact (albeit of a negative kind). Despite the anger, reconciliation fantasies persisted. Commonly they had difficulty sharing the child upon whom they had leaned heavily for companionship and solace. In more extreme cases,



borderline-functioning parents fought against a sense of abandonment and feelings of nothingness and emptiness that threatened when they were alone.

Other parents experienced varying degrees of helplessness and had corresponding needs to actively restore a sense of power and control. They insisted on making unilateral decisions or became negativistic and oppositional. For the more disturbed, this defiance took the form of their manufacturing their own rules, pathologically lying and disregarding agreements, often contemptuously. Agreement felt like surrender or capitulation. Not agreeing and fighting felt like being in control and dominant.

Finally, parents who had difficulty tolerating feelings of guilt, although generally less disturbed, could provoke unreasonable behavior in the ex-spouse to prove they were the v i c tb and to justify their leaving. Others who secretly wished to abdicate their responsibilities to their children, but could not acknowledge their rejection, entered a custody suit to show they cared. Paradoxically, despite their protests and claims, they were often unavailable to the child and sought to prove the other parent was preventing their access.

We have described above elements of what motivate disputes and resistances to making divorce settlements. Any one of these elements alone is usually not sufficient to maintain chronic conflict. Typically a family is locked at more than one level. The greater the number of layers or components of the impasse, the more complex and entrenched the dispute. There are numerous ways in which impasses can be generated and maintained. We identify now some prototypical examples illustrating the three levels of impasse in mutual interaction.

For parents with vulnerable self-images (narcissistic personalities), traumatic separations are particularly humiliating. Their defensive need to recoup self-esteem and see the other parent as “bad” (e.g., morally reprehensible or mentally disturbed) coincides with desperate and outrageous separation behaviors, providing behavioral confirmation of their emerging negative views. These parents also have a great need to gather an army of supportive others who will espouse their cause and testify to their victimization, thus consensually validating the negative reconstruction of the ex-spouse and reconstituting a more positive sense of self. Entering the public arena of the court, the presence of a formal audience, while offering vindication, is also potentially threatening to these narcissistically vulnerable parents, because any questioning of their views attacks self-esteem further and redoubles their need to fight.

Separating spouses with paranoid tendencies who jealously guard, harass, and sometimes threaten violence, often induce their partners to leave the home suddenly and unexpectedly, hiding their own and the children’s whereabouts. Often these ex-mates secretly engage the assistance of friends and professionals for protection, and petition authorities for restraining orders. This series of escalating secret maneuvers and withholding of information thus becomes the reality-based evidence of their ideas of conspiracy and is likely to dramatically increase the spouse’s paranoid panic and precipitate the catastrophe the ex-mate feared. Moreover, since most paranoid personalities are also vulnerable to feelings of

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humiliation and helplessness, an enormous need to take action, to set the record straight, and receive total public vindication is engendered.

A child’s stress reaction and symptomatic behavior (to the divorce and parental discord) maintains many long-term disputes between parents with vulnerable self-esteem. While one parent tries to protect the child and prove the other to blame for the child’s problems, in defense the spouse attempts to prove he/she is capable of good or better parenting, frequently making flagrant unilateral decisions. In a vicious cycle, the fight that insues increases the child’s disturbed and symptomatic behavior. This impasse illustrates, as in many cases, that parents may be appropriately concerned about their child but their attempts to “protect” the child are either ineffective or compound the problem.

Where one parent who is vulnerable to loss and cannot let go of the marriage is separating from a partner who is very guilty about the desertion, the couple may collude in maintaining long-term conflicts so as to delay the final divorce. For one, the anger is a defense against sadness and loss, the fight a means of maintaining contact. For the “guilty” partner, provoking angry outbursts justifies the leaving, and the stalling of a settlement reflects the ambivalence and the wish to mitigate the pain caused.

The utility of identifying the impasse is that it suggests strategic, focused interventions which aim to resolve or circumvent what is blocking a stable divorce settlement. In fact, the impasse construct helps guide answers to some questions that are controversial in the mediation field in general. For instance, it helps decide who to include and who to exclude in mediation (children, new lover, kin, mental health professionals, attorneys). It helps determine what issues must be resolved and in what order (visitation, child care, custody, or financial). It suggests what techniques to use (when a therapeutic intervention is needed versus when reality confrontations and straight bargaining is indicated). Finally, the impasse suggests the format and content of the written agreement (language use, style, and aspects that must be made legally enforceable).

IMPASSE-DIRECTED MEDIATION

Distinguishing Features Of The Model

The overall goal of the present mediation model is to help families through the divorce transition to a postdivorce structure which is conducive to their own and their children’s changing needs. Toward this purpose, we not only help resolve parental disputes over children, but enhance parents ’ capacity to parent and coparent, and work directly with children to improve their capacity to cope with their parents’ postdivorce conflicts. Hence the mediation effort is essentially child focused. The completion of a custody/visitation agreement is seen as secondary to and an outward symbol of the family’s restructuring. The content and format of the agreement nonetheless is important as it must not only stabilize and anchor the parents’ present transactions, but also provide a guide for communicating and coparenting necessary to change family arrangements in the future. The mediation



model is short-term (approximately 10 weeks with followup consultations available), confidential , and separate from legal proceedings.

Compared with most mediation models, this one is controversial in two ways. First, it involves a therapeutic and counseling effort insofar as we intervene in parents’ motivation to fight and counsel them on the needs of their children. Many would not consider this mediation. In rebuttal, we note our counseling is short-term and goal-directed toward accomplishing a stable family settlement of the divorce issues. Given our subpopulation’s vulnerability to irrationality and repeated conflict, it is essential to provide counseling services aimed specifically at shifting the factors which converge to create their impasse. We agree there is a danger in losing this focus and prolonging or complicating the process by doing long-term therapy or counseling with the parties. Second, while the need for premediation education, counseling, and therapy for high conflict families has been acknowledged by a number of mediators (Blades, 1984; Kressel et al., 1980; Saposnek, 1983) all have emphasized that it should be done in a separate setting, apart from the actual negotiations. We disagree and see counseling and mediation of a settlement for high conflict families as two phases of the one process. The understanding of the impasse, the parents’ personality styles, and the children’s needs gained in the counseling phase is invaluable for choosing negotiation strategies and building the actual agreement. Moreover, the process is better coordinated and expedited by having the same counselor/mediation (CIM) in both phases.

Phases Of Mediation

At intake, parents are informed of the goals of the service and its expected duration. A stipulation that communications within the service are confidential is signed, and a sliding scale fee is assessed. Each parent and child is then seen separately to obtain an account of the present dispute, a history of the marriage and separation, and a developmental sketch of the child with special attention to the child’s response to the divorce and dispute. During these information-gathering sessions, three focused clinical questions guide the enquiry: What is the nature of the impasse? What is the impact of not settling on the child? What resources are available within the family and their social system to help resolve the impasse? The impasse schema insures a full assessment of the multilevels of the dispute and therein expands the options and resources available for its resolution. Based on this understanding, a working strategy is formulated for intervening in the family and the mediation process begins.

There are three distinct phases in our mediation with high conflict families, each of which will be described more fully:

1. A prenegotiation counseling phase, where each parent is prepared to mediate by strategically intervening in hidher impasse and where an understanding of the child’s needs are explored and developed. A negotiation or conflict resolution phase, where specific issues are resolved and a set of agreements with respect to coparenting and child care are negotiated.

2.

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3. An implementation phase where, in cases of new or renewed incidence of conflict, the C/M is available for emergency consultations and help with interpreting, monitoring and modifying agreements.

Prenegotiation Counseling Phase

During this phase, each parent is seen individually, reflecting their need to attain psychological separation. The C/M readies the parent for negotiations by (a) shifting the parental impasse, (b) increasing the parent’s awareness of and concern for the child, (c) confronting the parent with the realities of the situation and then preparing agendas for the negotiation session.

Impasse Related Strategies

While we attempt to set forth strategies of intervention in a progression, in actuality, given the systemic nature of the conflict, a number of strategies and techniques are used simultaneously, aimed at different levels of the impasse. In general, the C/M tries first to shift the internal psychological dimensions. However, this is often not possible given the character pathology of our clientele. Hence the C/M must work around the parent’s internal and relational difficulties by paradoxical injunctions, family counseling, and other interventions aimed at the interpersonal level. Alternatively, the CIM can circumvent the enmeshed couple and work primarily with their social network.

By labeling, clarifying, and psychodynamically interpreting the concealed emotional issues and conflicts within the parents, and between them and their ex-spouse, child, or significant other, these underlying dynamics are brought to the surface, addressed, and understood, hence freeing the individual to respond more rationally. For instance, it is directly useful to show some better functioning parents how they are using the custody dispute to forestall painful feelings of loss, to repair an injured self-esteem, or restore a sense of power, and to help them instead to mourn the loss, reconstitute a better self-image, and regain control over their lives in other more appropriate ways. Helping parents sort out divorce-engendered conflicts from earlier unresolved conflicts allows for more reality-based decisions. Having parents identify how and where they become caught by their ex-spouse or child in a negative cycle of interactions, and emphasizing that “it takes two to fight” but only one to “unhook,” gives parents insight and more freedom to act differently. Reviewing the events of a traumatic separation and putting together a more positive, forgiving picture of the marital breakup salvages their self-esteem and their need to reconstruct a negative view of the separating spouse. Confronting parents with their distortions, reviewing the aspects of the other parent and the marriage for which they most yearn, helping them find these qualities in themselves or in relationships with others, aids those who are clinging to idealized views. Once the nature of the internal and interpersonal conflicts are clarified, some parents can acknowledge, understand, and better tolerate their feelings and become better able to realistically appraise and revise their actions. For some, these methods suffice to shift the dynamics of the impasse and return them to a more rational mode.



For other, more emotionally disturbed parents, with perhaps longer term and more pervasive conflicts, insight into feelings leads to major ego regressions and explosions. Some parents are unable to look at their internal life or their contributions to problems without feeling exposed, attacked, blamed, and betrayed. Insight-oriented therapeutic interventions are perceived as confrontations and challenges and are defended against with categorical denial, increased rigidity of position, blatant generalizing (“I know what is best”), or projection of total blame or splitting (“I’m good; he/she’s bad”). A concomitant devaluation of the mediation process, a painful disillusionment with the mediator, a collapse of perspective and a working alliance, and perhaps a flight from mediation may occur. Alternatively, aggressive and dangerous acting out may result. In fact, with these interventions, the, parent becomes more resistant and the dispute more embedded. For this group, alternative strategies for intervening, based on understanding and sensitivity to their particular psychological vulnerability and disturbance is essential. Overall, the aim of these new strategies is not to shift the intrapsychic conflict, but the parents’ motivations, attitudes and behavior. Interventions are designed to either alleviate underlying anxieties or to support, shift, and redirect particular defenses in the service of making a better divorce arrangement for the parents and child. Below a series of three such strategies are described.

One strategy is to modify the psychological motivation indirectly. For example, with a deeply humiliated father who seeks to reconstitute self-esteem by proving his ex-mate a “bad parent” in court, the C/M attempts to restore his narcissistic balance: by highlighting his special strengths, reassuring him (appropriately) about his parental role, and redirecting him to new sources of approval. As he is more supported and reassured, his need to “win in court” decreases. Likewise, with a parent who is unable to tolerate loss and who hangs onto the spouse via a custody dispute, the CIM encourages new relationships (thereby replenishing loss) and supports a sense of competence (thereby decreasing fear of survival). As underlying fears are reduced, so is the need for the presence of the ex-spouse and consequently, the dispute.

In another strategy the parent’s defenses are supported, positively connotated, framed andor redirected in the service of making shifts. Hence defining an angry, embittered, and resentful parent as “making a noble effort to control her feelings” may sometimes support her capacity to do so. Telling a paranoid and deeply shamed man who is stubbornly refusing to cooperate that he is ‘‘a very proud man whose pride sometimes gets in the way” and emphasizing that he “does not want to do anything beneath his dignity, ” like responding angrily to his ex-wife, obliges him to respond differently. Telling a parent that his violence and emotional breakdown is time limited and reactive to a very traumatic separation, decreases his defensive need to prove himself by having all his demands immediately met. Showing an extremely self-centered or sociopathic parent what is ultimately in her own best interests may modify her stance.

A third strategy, again while not changing the underlying psychodynamics, provides a rationale or motivation that enhances parents ’ willingness to develop and abide by agreements. Asking parents whether their present problem-solving

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efforts are producing the desired results underscores the futility of their efforts. Demonstrating to a father that his solution to his wife’s limiting his visitation (to grab his child and not communicate with the mother) only increases her anxiety and mwillingness to give more access, may alter his behavior. Providing a father who is concerned with his financial and emotional survival a cost-effective analysis of his present pursuit of custody and other methods of resolving the disagreement, dissuades the former efforts. Showing a mother how her raiding the house and taking what is “rightfully hers” only increases her adolescent sons’ anger towards her, and their alliance with the father, restrains her actions.

Though these strategies sometimes work, some parents may rigidly resist changing their views and behavior. Unable to shift aparent internally (by working through, around, or with their problem), the C/M attempts to shift the external world. Here the C/M circumvents the parent’s problems by directly intervening with their former mate, their new spouse, or others. For instance, the C/M, in a neutral, nonjudgmental manner, may help the ex-mate understand the parent’s special sensitivities and psychodynamics, and teach h idhe r special ways of communicating with the parent, to avoid triggering disturbed behavior. The ex-spouses of paranoid and potentially violent persons (often out of fear of their mate’s reactions, jealousies, and harassment) hide information which only perpetuates states of panic and fury in their mate. These ex-spouses are cautioned to give very clear, direct information, to allow them time to think through plans, set realistic, rational limits, and to avoid any concealment that would suggest conspiracy. The ex-spouse of obsessive, compulsive persons is shown that their‘ changing plans suddenly is very disruptive and can provoke a breakdown into uncontrollably angry reactions. Overall, this strategy helps the ex-mate develop a critical distance from the mate. In using this intervention, great care needs to be taken not to negatively label the other parent as “emotionally disturbed” and hence reduce all problems to the psychopathology of the other. Rather, emphasis is upon the more reflective parent taking more responsibility (for their own and their child’s sake) for not provoking the other parent’s vulnerabilities.

Finally, in recognition that others (new partners, grandparents, mental health professionals, and attorneys) can, on the one hand provoke and escalate parental disputes and hinder or sabotage agreements, and on the other hand, smooth conflict, facilitate negotiations, stabilize, and support an emotionally upset parent, these others need to be strategically involved in the mediation and become parties to agreements reached. For a fuller descriptive analysis of the role of significant others and specific interventions with them, see Johnston and Campbell (in press).

Strategies for Increasing Parental Concern for the Child Interventions with parents are two pronged. At the same time, the C/M works

with the impasse, she/he increases parents’ understanding of their child and helps them extricate the child from the impasse. In general, depending on the parents’ response, there is a progression from sensitizing parents to their child’s needs, to specific counseling, to strong advocacy as the mediation progresses.

Initially, the mediator heightens the parents ’ awareness and sensitivity to the



child’s experience and needs by asking many questions about their child’s reactions to the divorce, the dispute, and the meaning of each parent to the child. This begins to orient the parents to protecting the child. As counseling progresses, the C/M concretely and clearly demonstrates via feedback from the children’s sessions the oftentimes hurtful effects of their disputes on the child. This feedback is provided via verbal interpretations of the children’s behavior and/or via the child’s artwork or photographs of the child in sessions. This first-hand knowledge of the child allows the C/M to speak with authenticity with regard to the children’s specific needs and often has a strong impact on parents. While care must be taken not to make parents feel too discouraged or guilty, the C/M highlights the child’s perspective, the risks to the child’s development and the pain inflicted on the child by their fights or refusal to settle. A thorough understanding of the impact of disputes on children for intervening with parents is therefore essential (see Johnston et al., 1985; Johnston & Campbell, 1986). In addition, the C/M provides guidance and education on how to handle the child, how to shield or remove the child from the parental dispute, and how to ease the child’s transitions from one parent to the other. Hence, the C/M points out to polarized parents the actual and potential effects of their inconsistent handling on the child’s self-integrity . Showing parents that their actions are potentially destroying their own relationship with the child is also useful.

Despite these efforts to raise and then use their concern for the child as a leverage for change, some parents remain unresponsive and a stronger advocacy role is taken. Here the C/M confronts the parents with specific examples of the child’s suffering. In one case, showing parents how their child was preoccupied with disturbing, violent fantasies led to a cessation of their own violent interactions with each other. In two families in which children had been kidnapped and secreted from the other parent, strongly confronting the parents with the legacy of their actions (highly distressed, confused children with psychotic-like symptoms) led eventually to their making entirely new coparenting plans which helped stabilize the children. For other entrenched parents, the C/M directly advises what the children need and can tolerate in the way of custody and access plans, giving a clear rationale why certain options will not work, and asking parents to make sacrifices for their children. Finally, the C/M refuses to mediate any agreement that is clearly detrimental to the child.

Clarifying Realities and Preparing the Agenda for Negotiation For all parents, but especially those f m l y entrenched, the final strategy during

the counseling phase is to modify their unrealistic expectations and magical wishes by reality clarification and confrontation. Towards this end, the C/M sharpens the realities of the divorce situation: the fact tha.t the ex-spouse is indeed intent on divorce; the fact that the ex-spouse is not going to disappear as hoped; the fact that they cannot make unilateral decisions with respect to the child; the fact that they cannot control what happens at the other parent’s house, etc. The C/M clearly orients parents to the reality of who their ex-spouse is: that they could not change hidher during the marriage and they cannot now; instead they have to become

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more astute in dealing with their ex-spouse. The C/M clearly summarizes or advocates for the child’s specific needs. Finally, the legal realities (laws, policies, and procedures of the court) are clarified: the fact that they do not have inalienable rights and control over the children and that the court may not grant their wishes, despite their convictions. Many parents want guarantees from the court that the spouse will be cooperative, good and trustworthy. Here the C/M helps distinguish what are legally enforceable court orders and what are merely illusions of legal authority. Lastly, the mediator encourages parents to check out their unrealistic expectations and fantasies in consultations with attorneys, child protective service workers, or even the court. After clarifying the realities of the situation, which in effect limits options, the C/M helps them define what they can do for themselves and their children. Under “the shadow of the law” and within the shadow of these realities, an agenda is prepared of what needs to be accomplished during the negotiation of a specific parenting plan.

Negotiation or Conflict Resolution Phase Underscorning their need to meet only for the purpose of cooperative parenting

during this phase the divorcing couple is brought together (usually for the first time) to resolve the specific issues under dispute and to prepare a coparenting agreement. Some regression often occurs at this f is t joint session, since parents are usually highly anxious and quick to resume old unproductive patterns which reestablish their impasse. There are a number of techniques used to prevent or limit this regression, as well as further prepare some parents for the negotiations.

First, predicting regression can forestall it. Second, the C/M can intervene directly in the parent’s interaction. Often a simple gesture or a short-hand enigmatic statement reminds a parent of earlier discussions about the manner in which they become hooked, thereby averting the restoration of their impasse. (These reminders capitalize on insights gleaned during the prenegotiation stage and underscore the value of having this stage and the negotiation phase in the same service .) Third, positively connoting negative interactions has been helpful. One couple, for example, who was locked in a bitter struggle that erupted into extremely demeaning insults and fist fights when they exchanged the child, were credited with having an unusually lively, exciting maniage where their dramatic fighting was a source of enjoyment to them and great amusement to their friends. Acknowledging and dignifying their fighting and their marriage restored self-esteem and allowed them to control their escalating provocations, Fourth, paradoxical injunctions (e.g., informing parents of their need to fight and giving them an arena and a specific set of issues to fight about) are often useful. In one case, supporting the father by insisting that he was unable to make a commitment to his ex-wife who was constantly demanding that he be a “reliable father,” paradoxically allowed him to commit himself to an agreement for the first time. Fifth, some couples need to clarify directly with each other the events of the separation or their views of a particular traumatic incident before they can proceed. Having the couple actually apologize to each other usually symbolizes and promotes a breakthrough. Sixth, the use of analogies or stories helps frame, and

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thereby avoid, a couple’s interactional impasse. For example, the C/M told one couple an Indian folk tale about the frustrating marriage between a coyote (lively, emotional, and playful) and a turtle (cautious, easily threatened, withdrawing into his shell) which typified their problem. The allegory decreased their defensiveness, heightened their willingness to respect the other’s methods, and gave them permission to separate.

The actual negotiation of an agreement is relatively rapid, given the earlier preparations. Generally it proceeds according to the prevailing models: issues are defined, options discussed and evaluated, specific alternatives selected, details clarified, and agreements drafted. The mediator chooses from a wide range of well-known conflict resolution styles and family therapy techniques those which are best suited for the couple and their impasse, e.g., one text mediation (shuttle diplomacy) for highly enmeshed couples with serious boundary problems; crisis mediation for those with recent traumatic separations.

The agreements developed are impasse directed in that they are responsive to the family’s vulnerability to conflict. They provide a blueprint for the family’s present and future relationships in that they delineate concrete, workable plans, and outline procedures for change. Agreements take into account not only the “real” issues (the legal determination of custody, time sharing, etc.), but are strategically framed to incorporate symbolic issues as well (need for respect, control, fear of loss, etc.). For a father who needs to be acknowledged, the agreement begins: “We the parents of ” For a mother who needs to feel separate, the agreements begins: “For these parents to develop their separate lives and identities, the following

Careful attention is paid not only to the strategic use of language, but to the form and content of the agreement. For couples frightened by the finality of the divorce, or who fear a loss of power and control by “being pinned down,” broad provisional agreements (legally enforceable) and ‘‘gentlemen’s agreements’ (legally nonenforceable contracts which define how family members will behave towards one another) may need to be the starting point of a resolution. For couples who are far apart, a series of trial agreements can move the family by successive approximations toward a final resolution. Here the agreement is used as a tool or technique for resolving impasses and for gradually stabilizing and solidifying the new family arrangements. In general, the psychological meaning of authority and the law to the parties helps determine which aspects of the agreement should be formally stipulated and ordered by the court. Legal protection of the parties is not the only consideration.

,,

Implementation Phase The final agreement obtained is taken by parents for review to their respective

attorneys, whose responsibility it is to file with the court. Following this, the C/M remains available to the family for emergency consultations and helps with implementing or modifying the arrangements, when necessary. Hence the service remains present, enabling the restraints, controls, insights, and coping skills learned during the brief intervention to continue.

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OUTCOME EFFECTIVENESS OF THE MODEL

Using the impasse model of mediation, 40 families were seen in individual family mediation (where each parent and their children were seen individually and when ready met conjointly) and 40 families were seen ingroup mediation (where parents and their children were seen in small groups with their peers and then met Conjointly with other parents disputing custody). At the end of the negotiation phase, 80% of those in the individual service and 85% of those in the group service reached agreements. At a 6-month followup, 70% and 75% of families in the individual and group services, respectively, had maintained their agreement and stayed out of court. A 2-year followup is presently underway. On the average, the individual family mediation required 27.65 and the group mediation 17.3 1 staff hours of direct service per family. Whereas, families seen individually maintained contact with the service for 12.5 months, those in the group maintained 6.42 months of contact. Hence while both services are about equally effective in terms of agreements reached and maintained, the group service was 40% more cost effective in terms of staff time and twice as efficient in terms of duration of contact with the family (from intake through implementation). Given the high conflict nature of this population, and compared with previous outcome rates, these results are extremely promising. A full report of the group mediation service and its outcome compared to the individual service is available elsewhere (Campbell & Johnston, 1985).

CONCLUSIONS

There is increasing evidence that though mediation is more beneficial than traditional adversary procedure, a large proportion of families disputing child custody and access are not able to settle, or are only partially able to settle their differences using present mediation services. The dilemma is: How are these cases to be handled in order to protect children fiom long-term parental conflict in and outside of the courts?

Before concluding that mediation per se is inappropriate for these parents (who are characterized by being highly conflicted, ambivalent about separation, emotionally distressed, and limited in their capacity to protect their children), we need to revise and rethink our views about what are suitable methods and techniques for mediating with these families. A spectrum of mediation models, responsive to the varying characteristics of families, may be necessary. In this article, we have presented one such model, based upon an understanding of the family impasse to dispute resolution and its effects on children.

The environment in which our service was developed should be considered to determine if the model can be suitably transplanted to other settings. Our mediation service began in 1976, and grew in parallel with the development and implementation of mandatory mediation within the courts in California. The courts typically provide a very brief (one to three sessions), focused, problem solving effort with divorcing couples, and seldom have time or the resources to involve

BEHAVIORAL SCIENCES 8, THE LAW


children. For many families, the structure of this brief mediation (clear rules and task focus) is sufficient to bind anxiety, restrain acting out and emotional disruption, allowing rational decision making. Furthermore, the written agreement, legally stipulated and ordered by the court, is sufficient for many to reorganize and reestablish a postdivorce family equilibrium. In general, those who are unable to settle in this manner are either referred directly for evaluation or referred to community-based mental health services, like ours, for more extensive counseling andor mediation.

Our mediation service, therefore, operates as a second tier, or backup service, to the court’s brief mandatory mediation efforts. The third tier, or level, is generally a custody evaluation and recommendation followed by a court trial. Very few reach this last stage. There is a pressing need to develop more reliable criteria to indicate who is appropriate for what tier of service so that more rapid referrals can be made to expedite the resolution of custody and visitation disputes for high conflict families.

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Campbell, L. E. G., Mayes, S. S., & Johnston, J. R. (1986). Core psychological conflicts in child custody disputes: The regulation of self-esteem and self-integration. Paper presented to the 63rd Annual Meeting of the American Orthopsychiatric Association, Chicago.

Campbell, L. E. G., Mayes, S. S., & Johnson, J. R. (1985). Psychological conflicts that hamper post-divorce child custody resolution. Paper presented to the 93rd American Psychological Association’s Annual Convention. Los Angeles, California.

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VOL. 4, NO. 2 1986

Documents

Impasse-directed mediation with high conflict families in custody disputes