Alternative Dispute Resolution in Divorce and Family Mediation

Introduction to Alternative Dispute Resolution

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 recent decades, particularly where family and divorce disputes are concerned. Indeed, where young children are involved, couples often prefer to resolve disputes privately via mediation rather than publicly in court. In this way, negotiations remain amicable, or can become so with the help of therapy.

Mediation expert John Haynes identifies the purpose of mediation as finding a mutually acceptable solution for all disputing parties (Haynes 1). In order to achieve this, he suggests the following steps in the mediation process: 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: the purpose of the mediator is to identify the needs and interests of both parties, generate options to satisfy those needs, and to help both parties 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 guide them toward a situation they can use to find an amicable resolution.

It should also be recognized that other professionals, besides the mediator, may 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 cases, as suggested by Fisher, Ventura, and 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 will need the services of an impartial legal counselor whose interest lies in maintaining balance between the conflicting parties. The above considerations are particularly relevant in the case of the 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 Pertucci Case

The first step in the mediation process is to assess the situation. From Cherry's viewpoint, the Pertucci situation is that she became increasingly lonely as Giovani's business became increasingly successful. He was frequently away from home, and she was left to care for their child and their home on her own. To escape her 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 her. Her feelings of marital neglect led to an affair with a colleague at the office, which in turn 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 and hopes 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 Cherry's 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 Cherry to take as little as possible from the home they had built together. He therefore wants to retain both his son and his house, with minimal contact with Cherry.

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

The most important issues in the case include the fair division of property, separate co-parenting arrangements, and 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.

The Mediation Process and Role of the Mediator

Haynes (15) notes that the mediator has a very specific role in the mediation process and must 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). If these additional services are needed, the couple must be referred to the appropriate professionals. The mediator's task is only to identify those elements that aid the mediation process itself. As such, the mediator is to avoid where possible elements such as emotive statements, social talk, and legal or therapeutic 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 goal 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 to work through his emotional issues. Only Cherry has shown signs of being ready for mediation. However, her difficulties in communicating effectively with Giovani may also lead to therapeutic 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 practical solutions. Giovani is, however, unable to do so in his current state, and the traditional form of mediation cannot proceed. The emotional aspects of the situation still very much dominate his thinking, and he is unable to communicate with Cherry in a cooperative way.

Bibliography

Alexander, Nadja Marie. Global Trends in Mediation. Kluwer Law International, 2006.

Fisher, Thelma, John Ventura, and Mary Reed. Divorce for Dummies. Indianapolis: Wiley Publishing, 2005.

Fishman Green, Rachel. "Mediator Neutrality — How is it possible?" Divorce Source, Inc. http://www.divorcesource.com/NY/ARTICLES/green3.html

Folber, Jay, Ann L. Milne, and Peter Salem, eds. Divorce and Family Mediation: Models, Techniques, and Applications. Guilford Press, 2004.

Haynes, John M. The Fundamentals of Mediation. SUNY Press, 1995.

Jessani, Anju D. "Deconstructing the Divorce Mediation Process: One Practitioner's Approach." Divorce Source Inc. http://www.divorcesource.com/NJ/ARTICLES/jessani17.html

Levin, Diane. "Why Can't We All Just Get Along." 29 March 2005. http://mediationchannel.com/category/marriage/

Roberts, Marian. Developing the Craft of Mediation. Jessica Kingsley Publishers, 2007.

Roberts, Marian. "Third Persons in Family Mediation — Towards a Typology of Practice." UK College of Family Mediators, 2004. http://www.ukcfm.co.uk/uploads/documents/haynes1004.doc