Alternative Dispute Resolution (ADR) Many

Alternative Dispute Resolution (ADR)

Many theorists, including Nadja Alexander and Marian Roberts, begin their discussions of mediation by noting that it is a fairly new phenomenon in the field of formal dispute resolution. Nevertheless, the paradigm has gained increasing popularity over the last decades, particularly where family and divorce disputes are concerned. Indeed, where young children are involved, couples often prefer to resolve the dispute privately via mediation than publicly in court. In this way, negotiations remain amicable, or can become so with the help of therapy. John Haynes, a mediation expert, identifies the purpose of mediation as finding a mutually acceptable solution for both or all the disputing parties (Haynes 1). In order to do this, he suggests the following steps in the process of mediation: Recognizing the problem; choosing the arena; selecting the mediator; gathering the data; defining the problem; developing options; redefining positions; bargaining; and drafting the agreement. Nadja Alexander's (10) identification of the issue is closely related to this: the purpose of the mediator is to identify the needs and interests of both parties, generate options to satisfy the needs of both, and to help both parties to create their own outcomes. In other words, both parties in dispute should be respected for their ability to find solutions on their own. The mediator should never make the decision for them, but rather lead them to a situation they can use to find an amicable solution.

It should also be recognized that other professionals, besides the mediator, could be involved in the process. Disputes are generally highly emotional events, with feelings affecting the parties involved to varying degrees. A counselor with psychiatric expertise might therefore be needed in such a case, as suggested by Fisher, Ventura & Reed (11). A recent development in mediation however provides an alternative to this. Pruett and Johnston (Folber, Milne & Salem 92) suggest a combined model of therapy and mediation that could be used to reach a more integrated solution for the whole family.

When a resolution is reached, it is likely that the disputing parties would need the services of an impartial legal counselor, whose interest is in balance between the conflicting parties. The above are considerations that need to be taken into account in the case of dispute between Cherry and Giovani Pertucci. While Cherry's attitude indicates that she is ready for mediation, Giovani still has many emotional issues that need attention before he will be willing to compromise in order to resolve the situation.

The Situation

The first step in the mediation process is to assess the situation. The Pertucci situation, from Cherry's viewpoint, is that she has become increasingly lonely as Giovani's business became increasingly successful. He was frequently away from home, and she was left with her child and her home to care for on her own. To escape loneliness, she furthered her studies to become a solicitor and found a job at Channel 4. In contrast to her life thus far, this opened up a new and exciting world for Cherry. Her feelings of marital neglect led to an affair with a man at the office, which led to the breakdown of her relationship with Giovani. While Cherry does not desire a reconciliation, she does wish for her son's continued contact with his father. She wishes to reach an amicable solution with Giovani.

Giovani, being on the receiving end of the breakdown resulting from his wife's affair, feels more hostile regarding the events. He feels victimized and angry, and believes that the new partner has taken his family away from him. He also feels betrayed by his wife, for whom he had provided amply in terms of physical comfort and luxury. For these reasons he wants his wife to take as little as possible from the home they had built up together. He therefore wants to keep both his son and his house, with as little contact as possible with Cherry.

Clearly there is a rather serious conflict of interest involved. Giovani is allowing his hurt feelings to compromise his son's well-being. Indeed, he wants to remove the boy from his mother's care, keeping him in a home from which his father is frequently absent on assignments. In contrast to Cherry, Giovani appears unwilling to let Eduardo's mother visit the boy frequently if he were in the custody of his father. Giovani appears to be unable to deal with his emotions regarding the affair and pending divorce. His anger may be just a defense mechanism to mask the depression, fear and pain related to the breakdown of his relationship. He may need professional therapy for this before mediation can be seen as an option (Fisher, Ventura and Reed 11). In working with Giovani, the counselor needs to help him redefine his position from self- to mutual interest. His feelings regarding Cherry are so negative that he is currently overly focused upon his self-interest.

The most important issues of the case include the fair division of property and separate co-parenting, and the effective communication towards reaching these solutions. While Cherry appears willing to communicate with Giovani, she has found herself unable to penetrate his extreme hostility and abusive behavior.

Mediation Process and role of Mediator

Haynes (15) notes that the mediator has a very specific role in the mediation process. He needs to clarify this role to the disputants at the beginning of the sessions. According to the traditional mediation model, the mediator can only offer mediation services, and not therapeutic or legal counsel (Haynes 14). Indeed, if these are needed, the couple needs to be referred to the appropriate professionals. The mediator's task is only to identify those elements that aid the mediation process itself. As such, he is to avoid where possible elements such as emotive statements, social talk, and legal or therapy questions. Instead the focus is to be only on elements that relate directly to the dispute and its resolution, such as the dispute data, the couple's goals statements, and their bargaining behavior and strategies. This limits the current mediation possibilities for Cherry and Giovani, as the latter still appears to need considerable professional help in order to work through his emotional issues. Only Cherry has shown signs of being ready for mediation. However, her problems in communicating effectively with Giovani may also lead to therapy questions on her part.

In the case of divorce mediation, Haynes (27) acknowledges that complex emotional issues integrate with practical matters when attempting to resolve disputes. For effective mediation, both parties need to distance themselves from the emotions resulting from the past, and focus upon the future to find solutions for their practical concerns. Giovani is however unable to do so in his current situation and the traditional form of mediation cannot proceed. Indeed, the emotional aspects of the situation still very much dominate in Giovani's mind, and he is unable to communicate with Cherry in a cooperative way.

Integrated Resolution

To resolve this problem in a more integrated and targeted way, Pruett and Johnston (in Folber, Milne & Salem 92) suggest two models of mediation and therapy in combination, which could be useful in the Pertucci case, particularly as a young child involved. Indeed, such a combination lends itself particularly well to divorce disputes because of the emotional issues that are likely to be unresolved. While Cherry is worried about the welfare of her child, appearing to care for his well-being, Giovani's focus appears to be on himself and his own feelings. It appears that he wants to claim everything produced by the marriage for himself, regardless of whether this is best for Eduardo or not.

Because of Giovani's apparently unresolved issues, it is therefore suggested that either the mediator refers both Cherry and Giovani for joint and separate counseling, or that one of Pruett and Johnston's combined mediation and therapy models be used. Indeed, Pruett and Johnston suggest that mediation in its traditional form, divorced from therapeutic intervention, has been most effective with couples who both wish to reach amicable solutions that optimize the benefits for both parties. Specifically, according to the authors (Folber, Milne & Salem 92), such couples display four elements to indicate that they are ready for mediation: 1) they made progress with the emotional aspects of their situation, 2) the levels of anger between them are manageable, 3) a willingness to compromise, and 4) an absence of psychopathology or physical abuse. In the case of the Pertuccis, Cherry is displaying a more mature level of the elements mentioned above. She does not appear hostile towards her former partner, or to believe that he is unable to take a significant amount of responsibility for their child. Despite the fact that he was abusive towards her and her new partner, she does not appear to believe that he would level such abuse against Eduardo. She also does not appear unwilling to reach a compromise towards co-parenting with Giovani.

Giovani on the other hand has not dealt with his emotions effectively, as is clear from his reported actions against Cherry and her new partner. 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 must however also be noted that mediation has considerable limitations, and indeed that it is not appropriate for every case. If Giovani for example were to be unresponsive to the therapeutic element of the mediation procedure suggested above, Cherry may have no option but to make use of the court system in order to obtain the best possible solution in considering her son.

A further possible problem is that mediation is often viewed in a negative light by legal and therapeutic professionals. As Diane Levin notes, many of these professionals do not view mediation as a legitimate option for divorcing couples, mainly because mediators are not licensed or certified by the state. Furthermore, the uncooperative attitude of one party could severely hamper the solutions sought after by the mediating approach. To mitigate the possible pitfalls and problems relating to mediation, Levin states that attorneys have recommended that couples consult with them before seeking the help of a mediator.