Locations for advice‐giving and the production of neutrality in divorce mediation sessions

• Published date: 01 March 2021
• Author: Angela Cora Garcia
• Date: 01 March 2021
• DOI: http://doi.org/10.1002/crq.21292

RESEARCH ARTICLE

Locations for advice-giving and the production

of neutrality in divorce mediation sessions

Angela Cora Garcia

1,2

1

Department of Sociology and

Department of Natural and Applied

Sciences, Bentley University, Waltham,

Massachusetts

2

Department of Global Studies, Bentley

University, Waltham, Massachusetts

Correspondence

Angela Cora Garcia, Department of

Sociology, Bentley University, 175 Forest

Street, Waltham, MA 02452.

Email: agarcia@bentley.edu

Abstract

In this paper I use a conversation analytic approach to

investigate the relationship between the location of

advice within a mediation session and the mediator's

construction of a neutral stance. I find that while medi-

ator advice is often placed after disputant disagree-

ments, problem statements, or position statements,

these locations may present challenges for mediator

neutrality. On the other hand, the placement of advice

within a mediator's extended turn or monologue may

insulate it from disputants' prior utterances so that the

advice can be given without challenging the mediator's

neutral stance.

1|INTRODUCTION

Previous studies of strategic approaches to mediation reveal a number of ways mediators can

intervene in the process. For example, Curran and Sebenius's (2003) study of George Mitchell's

mediation of peace talks in Northern Ireland showed how strategic choices can impact the suc-

cess of a negotiation. Mitchell employed process strategy—focusing on negotiating the proce-

dures to be used to conduct the talks. This enabled him to delay discussion of problematic

substantive issues and to put polarized personal relationships on the sidelines until trust could

be established.

Vasilyeva's (2017) study of custody mediation investigates how mediators do “strategic

maneuvering”to help parties achieve a fair settlement while facilitating the disputants' interac-

tions during the mediation process. For example, in her data mediators strategically introduced

topics of discussion, and at times directed disputants to leave certain topics. Greatbatch and

Dingwall (1989) found a similar process they called “selective facilitation,”in which mediators,

by choosing which topics to focus on may weaken their neutral stance depending on which dis-

putant's topic was discussed. Garcia (1996) found that mediators can strategically use the care

Received: 2 July 2020 Revised: 25 October 2020 Accepted: 18 November 2020

DOI: 10.1002/crq.21292

Conflict Resolution Quarterly. 2021;38:189–208. wileyonlinelibrary.com/journal/crq © 2020 Wiley Periodicals LLC 189

and justice modes of moral reasoning identified by Gilligan (1982) to help participants shift

their positions in facilitative mediation sessions.

Rooney (2007) recommends not making hypotheses about disputant's problems or making

plans for how to handle the mediation session. Instead, he explores mediation strategies and

argues that instead of advance planning the mediator should immerse him or herself in the ses-

sion and rely on insights and intuitions that can suggest actions as they become relevant. This

mediation strategy involves a high degree of spontaneity or improvisation.

In contrast, Kressel (2007) advocates strategic planning. He describes a strategic mediator

style which focuses on uncovering causes of conflict and then working to help disputants

address it. Mediators working in this strategic style may be more directive and provide guidance

and advice to disputants that may help resolve their problems. In this style of mediation, efforts

to maintain neutrality are seen as less important than efforts to contribute to the process of res-

olution. If an underlying problem involves one parent in a divorce mediation, for example, the

mediator will strategically focus on resolving this problem, even if this approach may be seen as

unequal treatment of the parents (Kressel, 2007).

In facilitative mediation programs a premium is put on disputant autonomy. Actions such

as advice-giving are therefore potentially problematic if they result in the mediator engaging in

the substantive issues of the dispute rather than focusing on neutral facilitation of the interac-

tion (Boulle, Colatrella, & Picchioni, 2008; Fisher, 2001; Garcia, 2012; Zumeta, 2006). However,

in some mediation programs, mediators are allowed or even expected to contribute ideas for the

resolution of the dispute and take an active approach to creating agreement (Kolb, 1981;

Wissler & Rack, 2004). There is some disagreement in the field over the extent to which media-

tors should engage in the dispute-resolution process or limit themselves strictly to facilitation of

the disputants' resolution of their own conflict (see Alberts, Heisterkamp, & McPhee, 2005;

Garcia, 2019; Greatbatch & Dingwall, 1989).

The neutrality of the mediation process and the mediator's facilitation of the session is a

widely held value (e.g., Alberts et al., 2005; Fisher, 2001; Herrman, 2006; Kressel, 2000;

Zumeta, 2006). Some scholars, however, challenge the idea that neutrality is a necessary or

desirable aspect of the mediation process (see, e.g., Bishop, Picard, Ramkay, & Sargent, 2015;

Mayer, 2004; Mayer, Stulberg, Susskind, & Lande, 2012). While previous research consistently

finds disputants rating their experience with mediation positively, most studies also show that a

small percentage of disputants perceive that mediators are biased against them

(e.g., Charkoudian & Wayne, 2010; Polkinghorn & McDermott, 2006; Wissler, 2002, 2004,

2006). Studies such as Garcia, Vise, and Whitaker (2002), Jacobs (2002), and

Heisterkamp (2006a, 2006b) have shown how challenges to neutrality can lead to the abandon-

ment of the mediation process or otherwise interfere with its effectiveness.

However, because disputants so rarely communicate their perceptions of mediator bias dur-

ing the mediation session (Garcia et al., 2002; Jacobs, 2002), it is generally difficult for mediators

to determine whether a disputant feels they are being treated unfairly, and what it was that trig-

gered that perception. Therefore, an explicit display of orientation to a failure of neutrality can-

not be relied on to determine whether mediator's advice-giving is problematic or not. Instead, it

is necessary to analyze the interactional context that advice-giving occurs within to investigate

how the positioning of the advice within the session may impact the mediator's efforts to create

a neutral stance in the session.

Previous research on advice-giving in mediation acknowledges the potential challenges to

neutrality inherent in the choice to either give advice explicitly or make suggestions in other

ways. For example, Fisher's (2001) study of family mediation showed mediators using a wide

190 GARCIA