Alternative Dispute Resolution ADR Many Term Paper

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Furthermore, he has displayed extreme anger towards her and appears completely unwilling to compromise. He wishes to keep both the house and Eduardo to himself, as he seems to feel betrayed by Cherry, and wants as little as possible contact with her. Cherry in turn is worried about the effect of this upon her child.

The requirements for mediation have therefore only been fulfilled by Cherry, whereas Giovani appears to need some level of therapy for his unresolved emotions and conflicts. He therefore needs to reach Cherry's more advanced level of preparedness in order for a more traditional form of mediation to be effective for them. Because one partner is already at a level where she is ready for mediation, it is suggested that a combination of therapy and mediation might be effective in this case towards reaching a more speedy and amicable resolution. In addition, Giovani's attitude indicates that he might be hostile towards any sort of intervention, and that pure therapy might have the adverse effect of raising his levels of anger rather than mitigating them. In this light, Pruett and Johnston suggest that therapeutic mediation should be administered only by highly trained professionals, with years of experience not only in mediation, but also in psychotherapy. In this way, such a person can provide the disputing parties with therapeutic support as and when they need it.

The first model of therapeutic mediation that Pruett and Johnston explicate (Folber, Milne & Salem 95) is Impasse-Directed Mediation. This form of mediation occurs in three phases (96).

The first phase is focuses on gather information, that begins with the intake interviews. During this phase, Eduardo and his parents will each be seen individually by the same therapist. During this phase, the history of the marriage and separation are delineated, and a developmental estimate of the child is given. Furthermore, Eduardo's response to the conflict situation between his parents is assessed.

The intake information is used to begin the prenegotiation counseling process. This process can then be used to help Cherry resolve any conflicts and hostility that she still has towards Giovani, while Giovani can be counseled with a focus towards bringing him to a more acceptable level of conflict resolution. In this phase, strategies can be used to help Giovani raise his own awareness of the needs of his child, which take precedence over his own humiliation, pain and anger. Giovani evidently feels betrayed and hurt by Cherry, and is therefore searching for ways to cause her the same level of pain. The prenegotiation counseling phase should then be used in order to help him see that such actions are not benefiting his son, but rather compromising his well-being.

Each parent needs to display an appropriate level of concern for their child's well-being. Cherry has already displayed such concern during her first interviews at the intake phase. Giovanni on the other hand displayed a sense of betrayal and a wish to use the child, like the house, to emotionally hurt Cherry. This appears to indicate a deep level of pain and betrayal, which is masked by the abusive anger that Giovani displayed towards Cherry and her new partner. Cherry has indicated no fear that Giovani might be abusive towards her son, and there is no indication of such abuse during their marriage.

The second phase of this model is the negotiation or conflict resolution phase. During this phase, Cherry and Giovani meet the counselor/mediator together for the first time. Once Giovani has worked through all his conflict issues, mediation and resolution can finally begin in earnest. There are two important issues that the couple needs to address. In this light, the mediator needs to focus on the parenting plan for the future, and the division of assets accumulated during the marriage.

Before counseling, Giovani appeared adamant to retain the house, as he did not want Cherry's new partner to benefit from his hard work. This is understandable to some degree, as it is Giovani's money that made the house possible. Depending upon the marriage contract, there are two possibilities that the couple could consider: Giovanni can either keep the house, as desired, or the house can be sold, and the profit divided between the couple according to an agreed-upon percentage. The mediator needs to help the couple assess which option is going to be most beneficial for all parties involved.

In addition to the marriage contract, a consideration could also be Eduardo. Going through the trauma of divorce with his parents could lead to a sense of alienation for Eduardo, who is uprooted not only from his family life, but also from his family home. Making regular visits to his father in his former home could help to mitigate this feeling. Furthermore, it is likely that Cherry would wish to begin her new life in a different home from the one she shared with Giovani. It is therefore unlikely, also in the light of her willingness to compromise and the maintain Giovani's presence in the life of their son, that she would begrudge him the right to retain occupancy of their former home. Such an attitude could also serve to mitigate Giovani's sense of betrayal, anger and pain as a result of Cherry's affair and new relationship.

In terms of Eduardo, his interest is towards the greatest possible stability during the unstable conditions of his parents' divorce. As Giovani is often away from home, it might be more beneficial for Eduardo to stay with his mother and her partner, while making regular visits with Giovani at his home during the times when he is available. Having been assured of his son's continued loyalty and love to his father during pre-negotiation counseling, Giovani's sense of threat from the new partner should be mitigated in favor of understanding the best interest of his son. In other words, Giovani now operates from a basis of understanding regarding the conditions that led to his wife's affair and subsequent relationship, and also regarding the fact that Cherry's new partner is not attempting to take over his role as father. He also understands that Cherry does not operate from a paradigm of deliberately hurting him, but rather from a drive to create for herself a happy and fulfilling life.

The third phase of the Impasse-Directed Mediation method is implementation. A memorandum of understanding (MOU) is drawn up, stipulating all the conditions of the agreement reached during the mediation. Both parents sign the MOU and implement the stipulations after the divorce.

In the light of Cherry's initial attitude, it is likely that the above technique will be effective as a mediation technique. If not, however, the couple could opt for the more intensive and longer-lasting model described by Pruett and Johnston (Folber, Milne & Salem 105), namely Counseling Mediation. This could take the form of Parents-only counseling, or parents and child counseling. It may be beneficial to include Eduardo in such counseling, as he is old enough to understand counseling on a cognitive level. The fact that his mother is worried about his response to the situation further merits Eduardo's inclusion in counseling. In general, this paradigm of counseling involves counseling the family members together, which may result in deepened feelings of hostility because of unresolved inner conflicts. An advantage of this model is however that counselors work with families on a long-term basis and also follow up on the short-term and long-term results for all family members involved.

It is therefore recommended that Impasse-Based Mediation be used as an initial method. Cherry's attitude can be utilized as a factor to facilitate the situation for the whole family. It is also recommended that Cherry's new partner be included, both in individual counseling and in some of the joint counseling sessions. He also needs to explicate his position in the family and ensure that no unnecessary hostility is leveled towards him, as this could also compromise the emotional and psychological well-being of the child.

In negotiating potential solutions with Cherry and Giovani, it is important to keep in mind Haynes's (1) emphasis on the purpose of mediation as finding mutually acceptable solutions for all parties in the dispute. Both Giovani and Cherry therefore have to be satisfied that their needs and requirements have been met as far as possible, with the well-being of their son taking precedence over their own feelings regarding each other and the divorce. Both parents need to understand that the best interest of their son is the highest priority, and should therefore be the focus of all negotiations and outcomes. If both parents can understand this, Cherry's goal of co-parenting and an amicable relationship can be reached effectively.

Potential Limitations of Mediation

Mediation can be an extremely effective tool for divorcing couples to reach an amicable solution to their disputes. Indeed, as noted above, many families prefer this to the trauma and public nature of court battles that could result in unnecessary bitterness. It…[continue]

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