The Moral Order in Family Mediation: Negotiating Competing Values

• Published date: 01 December 2017
• Date: 01 December 2017
• DOI: http://doi.org/10.1002/crq.21195

C R Q, vol. 35, no. 2, Winter 2017 173

© 2017 Association for Con ict Resolution and Wiley Periodicals, Inc.

Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/crq.21195

The Moral Order in Family Mediation:

Negotiating Competing Values

Janet Smithson

Anne Barlow

Rosemary Hunter

Jan Ewing

We used discourse analysis to study how mediators and parties negotiate

competing priorities and values during the family mediation process.

We drew on understandings of practical morality, speci cally the con-

cept of a moral order, to study UK mediation session talk. Our analysis

highlighted the contradictory moral orders drawn on by parties and

mediators.  e saliency of moral categories and concerns in parenting

is demonstrated, and we consider the problems this causes in the “no-

fault” context of mediation.

In the UK family mediation system, separating adults attend mediation

sessions with the goal of reaching an agreement about  nances or child

contact arrangements (or both) after separation or divorce.  is is facili-

tated by a mediator, trained by one of a number of mediation organiza-

tions. A core aim of mediation, which is highlighted in the training, is the

importance of neutral or impartial facilitation, which enables participants

to come to their own decisions (Family Mediation Council 2016 ). How-

ever, mediators are also encouraged to steer participants toward a “fair”

outcome in terms of sharing  nancial assets and care of children (Robinson

2012 ; Webley 2010 ).  ey are, moreover, supposed to ensure that, for par-

ents, the “best interests” of the child or children are prioritized.

Many thanks to the participants, both parties and mediators, who consented to these sessions

being recorded.  is work was supported by the Economic and Social Research Council (grant

ES/I031812/1).

174 SMITHSON, BARLOW, HUNTER, EWING

C R Q • DOI: 10.1002/crq

A dilemma in all types of mediation is therefore how to balance

a neutral or impartial facilitation that enables participants to come

to their own decisions with a more directive approach that attempts

to steer participants toward what lawyers would consider a fair out-

come (Robinson 2012 ; Webley 2010 ). In practice, mediators need to

manage these competing expectations or prioritize some over others

(Greatbatch and Dingwall 1989 ).  is tension among several of the

core values of mediation is noted in training and re ection on prac-

tice, but there is little detail in training manuals about how mediators

might attend to competing expectations and values during the media-

tion process itself.

Features of Mediation Talk

Mediation shares some general characteristics of institutional talk (Drew and

Heritage 1992 ) and with counseling and therapy encounters in particular.

In common with other counseling and therapy encounters, in mediation

there is an interactional asymmetry between practitioner and participants,

lay versus professional, which sets up and is characterized by speci c turn-

taking procedures, agenda setting, and formulation and preferred types

of responses (Heritage and Greatbatch 1989 ; Hutchby 2005 ; Mondada

1998 ). It is goal oriented, with some forms of talk permitted and others

discouraged, and participants attend to their institution-relevant identities

(e.g., as mediators or as parties).  e mediators are trained to adhere to a

code of practice, which includes a set of explicitly laid out mediation ideals

and norms, although, as previous studies have demonstrated, there are often

gaps between normative ideals and actual practice (Dingwall and Great-

batch 1993 ; Garcia 1991 ; Greatbatch and Dingwall 1997 ). In particular,

the concept of mediator neutrality has been shown to be di cult to achieve

in practice in various studies (Cobb and Rifkind 1991 ; Greatbatch and

Dingwall 1999 ; Jacobs 2002 ). Mediators, in common with therapists and

counselors, often struggle with talking about responsibility and behavior in

a nonblaming neutral setting, particularly when they are dealing with two

parties, or clients, at once in a multiparty situation (Patrika and Tseliou

2016 ).

Kelly ( 1983 ) outlined some of the key distinctions between media-

tion and therapy—in particular, the selectivity of focus in mediation and

the orientation to outcomes: “ e goal is not to cure the con ict but

to redirect and manage it su ciently well to enable the couple to reach