Mediation strategies in the face of custody conflicts

Published date01 June 2019
Date01 June 2019
Mediation strategies in the face of custody conflicts
Wenke Gulbrandsen
| Hanne Haavind
| Odd Arne Tjersland
Borough Ullern, Oslo, Norway
Department of Psychology, University of Oslo,
Oslo, Norway
Odd Arne Tjersland, Department of Psychology,
University of Oslo, P.O. Box 1094 Blindern, 0317
Oslo, Norway.
Systematic analyses of initiatives and responses from
mediators working with parents in intense conflicts about
child custody and care brought forward variations in
effective strategies. The findings are presented along six
dimensions: The topics that were addressed, how the
agenda for the sessions was decided, focus on agreement
vs relational topics, oral vs written orientation, limited vs
generous time, and parental vs system focus. Effective
mediators handled these dimensions with flexibility, rec-
ognized and validated both parents' perspectives, accepted
and explored differences, differentiated topics, focused on
relational issues when needed, tracked the process by
written summaries, and encouraged testing solutions.
How may mediators proceed when parents expose intense conflicts about child custody and care? To
discover more about how mediators are able to navigate during sessions with parents who arrive in
mediation with a low level of hope and a high level of conflict, we have analyzed the interactions
during mediation sessions in a set of selected cases from Norway.
By the Norwegian law, mediation is a mandatory part of the process of separation or divorce for
all couples with children. Some of the parents who arrive for mediation under these premises already
agree on a conjoint arrangement, and others expose intense conflicts about child custody and care. In
a naturalistic study of the sessions in a selected set of high-conflict cases, we started out with two
main objectives. The first objective is to describe what actually characterized conflicts in mediation
with divorcing parents when such conflicts escalated and were left unsolved (Gulbrandsen, Haavind,
& Tjersland, 2018). The second, as is the aim of this article, was to describe the mediators' strategies
when faced with these conflicts and how they were able to replace the often deadlocked dialogues
with more explorative procedures that could lead to agreements.
The focus is thus on the present mediation practice within Family Counseling Services centers in
Norway and the conversations between the mediator and the couple. Before we describe the study
and the results, we will summarize some ideas, theories, and perspectives that have been central in
the development of the field of mediation internationally, as well as laying the grounds for the Nor-
wegian legal arrangements regarding mediation.
Received: 18 September 2018 Revised: 29 October 2018 Accepted: 4 November 2018
DOI: 10.1002/crq.21241
© 2018 Association for Conflict Resolution and Wiley Periodicals, Inc.
Conflict Resolution Quarterly. 2019;36:293309. 293
Two pioneers within the field, Coogler (1978) and Haynes (1981), were the first to raise the issue of
mediation as an alternative to juridical settlements between separating parents. The idea was to help
the parents find their own solutions for care arrangements and cooperation after a break-up. Coogler
and Hayes both described structured methods for finding specific arrangements with regard to the
provision for and daily care of children. As the idea developed, other voices raised the issue of emo-
tional and relational conflicts between parents. The concern was that mediation should offer help to
parents in addressing such issues as well, as a means to facilitate the process of agreeing on care
arrangements. Thus, ideas from various therapeutic traditions came to inspire the field of mediation
(Brown, 1997; Buch & Folger, 1994; Emery, 2012; Irving & Benjamin, 2002; Kruk, 1997; Lang &
Taylor, 2000; Tjersland, 1998; Walker, McCarthy, & Timms, 1994; Winslade & Monk, 2001). After
reviewing these developments, we have formulated a broad definition of the mediation process that
can encompass much of the current diversity in the field:
Mediation is a cooperative process between separating or separated parents, assisted by
a mediator who strives for impartiality, and where all decisions ultimately lie with the
parents. The intention is in part to address issues that occupy parents and children about
their future as a family, and in part to find solutions that can be agreed upon. These
solutions can be cooperation arrangements regarding the children or other issues. The
overarching task for the mediator is to keep a focus on reaching an agreement, while at
the same time making use of relevant interventions to facilitate the process of dialogue
between the parents. (Tjersland & Gulbrandsen, 2010, p. 697)
With the exception of the transformative tradition (Buch & Folger, 1994), which has questioned
the focus on the agreements, this definition seems to have a broad consensus behind it. Nevertheless,
many questions remain unanswered. One of them regards what relevant facilitating interventions
might involve. Few observational studies of direct mediation practice exist, which might explain why
the interventions have often been described in terms that seem generic or unspecific.
One of the issues raised in this discussion is the differentiation between a focus on emotional pro-
cesses versus on agreements. This distinction can be considered artificial, as both making and settling
on an agreement are processes affected by emotions. Nevertheless, in the context of mediation, it can
contribute to a clearer dialogue if the mediator manages to sort out the emotional reactions from the
actual topics on which to decide. Although several of the mediators mentioned above have
highlighted the importance of making space for emotions and relational questions, there have been
different ideas about the purpose of this space. Some have referred to the usefulness of venting
emotions. Others have focused on the specific emotions being expressed (anger, despair, sorrow,
etc.) and how to regulate them. However, the purposes mostly underlined have been to help the
parties talk about their emotional reactions, obtain a clearer meaning of what they might express, and
explore if and in what way such reactions may inhibit the parents in the process of finding solutions
(Emery & Sbarra, 2005; Poitras & Raines, 2013; Saposnek, 2004). A recent interview study about
how mediators handled tensions between themselves and clients presents topics close to those we will
address here (Baitar, De Mol, & Rober, 2016).
In a previous article, we have identified and described eight sources of conflict between separat-
ing parents experiencing a high level of conflict (Gulbrandsen et al., 2018). Two were related to the
break up: reluctance by one of the partners to accept it and/or grievances regarding how it happened.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT