Divorce Mediation

Models of mediation can be conceptualized as being grounded in one of the four generally recognized mediation models (Beck and Sales 2001; Schwebel et al. 1994): legal model (Coogler 1978), labor management model (Haynes 1981), therapeutic model, and the communication and information model (Black and Joffe, 1978). The legal model (Coogler 1978), also referred to as structured mediation, is firmly controlled by the ground rules for mediation set forth by the mediator. Couples are seen together and discuss the issues of division of property, spousal support, child support, custody, and visitation, in this order. Discussion of these issues takes place over five two-hour sessions with the parties following a decision-making process clearly outlined by the mediator. The role of mediator is one of strict neutrality in which child advocacy and education of parents about children's needs is not encouraged. Both parties must use the same advisory lawyer who draws up a contract based on the decisions made in mediation. If failure occurs, referral to an arbiter is made.

The labor management model (LMM) (Haynes 1981) presupposes that mediation involves a bargaining process between parties with comparable levels of power, skill, and knowledge who can act in their own self-interest (Schwebel et al. 1994). Agreements must be viewed as adequate across eight criteria: (1) full disclosure of economic assets; (2) equitable division of assets; (3) no victims; (4) open and direct channels of communication between parents; (5) protected parental roles; (6) assumed access to children for both parents; (7) an explicit process for making future decisions; and (8) assured access to important relatives for the child or children. Mediators may meet individually with both parties to help prepare for negotiations. The mediator's role is active and directive, but shaped by the individual's needs. Knowledge of both legal and psychological issues related to divorce is essential for the mediator adopting this model. The approach is flexible and attends to the needs of the child or children.

The therapeutic model of divorce mediation is informed by the therapeutic theory chosen. Traditional conceptualizations of this model assumes participants cannot engage in effective communication and problem-solving until unresolved emotional and relational issues are addressed (Beck and Sales 2001). Unresolved emotional issues may require individual meetings with the mediator prior to any effort to produce a mutually acceptable agreement. Given the emphasis on relational issues and emotional impasses, the therapeutic model typically involves a greater number of sessions than other models (Schwebel et al. 1994). The mediator is active, directive, and child-focused, with the goal of facilitating a healthy family system. Attorneys have a more limited role in this model and typically are asked to review the agreement written up by the mediator. Agreements in the therapeutic model tend to emphasize cooperative language. If an agreement is unacceptable, parties can pursue other means to construct a workable agreement.

The appearance of the therapeutic model of mediation is dependent upon the therapeutic theory utilized. For example, Wayne Regina (2000) has grounded the mediation process in Bowen systems theory. Thus, mediation would focus on disputants' patterns of managing anxiety (i.e., triangulation), their ability to separate from emotion and process their emotional experience in mediation (i.e., differentiation). In contrast, John Winslade and Allison Cotter (1997) use narrative theory in conducting mediation. The focus is on the stories disputants tell of themselves that keep them from achieving agreement. Bowen systems theory and narrative theory are merely two examples of how a theory of therapy from the individual or family counseling/therapy contexts can be utilized to meet the objectives of mediation. See Beck, C. J. A. and Sales (2001) for further discussion of other therapeutic models of mediation.

The last general model is referred to as the communication and information model. This interdisciplinary model assumes that mutually agreeable agreements are attainable if the necessary information is freely available and exchanged (Black and Joffe 1978). Specialists from both the legal and mental health fields work together providing legal advice, resources in problem solving, drafts of the agreement, and focuses on specific details of the settlement (Beck and Sales 2001; Helm, Boyd, and Longwill 1992). An educational component is present, as parents are educated on the needs of their children and communication skills to assist in problem solving.

Across models variance is possible merely by the mediator's professional and personal background. For example, Bruce Phillips (1999) stresses the importance of active-listening skills as not simply a means to understand disputants' concerns but as a means to facilitate the change process. Carl Schneider (2000) stresses disputants' successful apologizing to maximize movement through the mediation process. Other concepts currently receiving attention in the literature include the importance of emotions for both mediator and disputants (Lund 2000; Retzinger and Scheff 2000) and theories power and feminism (Ellis and Wight 1998).

An emphasis on children's needs and their participation in the mediation process is one variation of mediation process that has received more detailed attention in the literature. Though educating parents about their children's needs is an aspect of all mediation models discussed above (except the legal mediation model), many researchers (Beck and Biank 1997a; Beck and Biank 1997b; Kelly 1996; McIntosh 2000) suggest mediators attend more to the needs of children. Wallerstein (1995, as cited in Beck and Biank 1997) views children as "hidden clients" as discussion of children's needs are not an emphasis of the mediation process. Focusing on children's needs occurs by helping parents assess the needs of their children as well as mediators conducting individual assessments with children. Allowing children to speak directly to a mediator may provide information that is more accurate than parent assessment, given the duress parents are under during divorce (Cohen, Dattner, and Luxenburg 1999; Johnston and Campbell 1988). This variation to the mediation process runs counter to the traditionally defined role of mediator (Beck and Biank 1997b), yet this role has its own variations.