Mediation strategies in the face of custody conflicts

• DOI: http://doi.org/10.1002/crq.21241
• Published date: 01 June 2019
• Date: 01 June 2019
• Author: Wenke Gulbrandsen,Odd Arne Tjersland,Hanne Haavind

RESEARCH ARTICLE

Mediation strategies in the face of custody conflicts

Wenke Gulbrandsen

1

| Hanne Haavind

2

| Odd Arne Tjersland

2

1

Borough Ullern, Oslo, Norway

2

Department of Psychology, University of Oslo,

Oslo, Norway

Correspondence

Odd Arne Tjersland, Department of Psychology,

University of Oslo, P.O. Box 1094 Blindern, 0317

Oslo, Norway.

Email: o.a.tjersland@psykologi.uio.no

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.

1|INTRODUCTION

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.

1

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;36:293–309. wileyonlinelibrary.com/journal/crq 293

2|MEDIATION AS AN INTERVENTION FOR DIVORCING OR

SEPARATING PARENTS

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.

294 GULBRANDSEN ET AL.