Family Mediation

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A Family Therapy Perspective on Mediation
ELANA KATZ, L.C.S.W.w

Many times, family therapists are both the first to learn that a couple may separate and the last to see them in the same consultation room, still relating to each other and the same professional before the adversarial system takes over. Mediation offers a viable alternative to that system because clients are helped to speak directly and craft the decisions that will delineate their move toward separate lives. Mediation is defined and the divorce process demystified, and the similarities and differences between mediation and therapy are discussed. Brief examples and a longer case discussion are provided to illustrate the mediation process. A familiarity with this process will enable therapists to hold more informed discussions about mediation with their clients and invite them to consider a process that is congruent with many of the values of family therapy. Keywords: Alternative Dispute Resolution; Custody; Divorce; Mediation; Separation Fam Proc 46:93–107, 2007

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arly in my mediation career, a couple came to my office, both professionals in their early 30s. They had been married for less than 4 years and they had no children, so I imagined that the work might be brief. However, nothing had yet prepared me for their ability to formalize their separate lives without animosity andFseeminglyFwithout difficulty, all in less than 40 minutes. Borrowing from what I do as a therapist, I asked if they could tell me how they had accomplished what they had done. I thought it might help in my teaching of mediation and therapy and in my work with other couples, and I genuinely thought I was offering them a constructive moment in which to reflect and own their strengths. Upon hearing my question, both members of the couple dissolved into tears, and I caught a brief glimpse of the pain that was lying just beneath their seemingly calm exteriors. Their work was done, they had accomplished the agreement that they had set out to reach, and I had imposed an unanticipated therapeutic agenda into their mediation. This poignant interaction reminded me that there are real differences between professions, and I apologized to my clients

wAckerman Institute for the Family, New York, New York. I would like to thank Constance Ahrons and Martha Edwards for their suggestions and comments during the preparation of this article, and Robert Collins and More Fleisher who continue to enrich the dialogue on families, mediation, and law in our Ackerman program.

Correspondence concerning this article should be addressed to Elana Katz, L.C.S.W., Teaching Faculty and Director, Divorce Mediation Program, Ackerman Institute for the Family, 149 E. 78th Street, New York, NY, 10021. E-mail: [email protected] 93

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for moving away from the work at hand. As I closed the session, I acknowledged their efforts in spite of the difficulty and helped them regain their composure. I have strived to attend to the boundary between professions in ways that fully respect my clients’ needs since that time.

WHAT IS MEDIATION?
Mediation is a process in which people use direct, assisted talks to resolve the issues between them. Clients may consult with outside experts, but they negotiate and make decisions for themselves. It is used successfully in both low- and high-conflict relationships, and it serves people from different racial and ethnic backgrounds. The goal is a workable agreement in writing. Once it is signed and notarized, it is as legal and binding as if the clients had arrived at a judgment after many years and exorbitant sums in litigation. Mediation is one option on a spectrum of choices available to people who seek a legal agreement between them. At one extreme are those who write their own agreements, without any professionals involved. At the other extreme is a litigated process culminating at trial. Surprisingly, in most jurisdictions, only a small percentage of cases go to trial, although many settle after a lengthy and expensive process that appears headed in that direction. In between these two extremes is mediation, in which one professional, or a pair of co-mediators, works directly with both people; collaborative law, in which each person has an attorney but agrees that he or she will not bring the matter to court (and if they do, the attorneys involved will not represent them in court actions; Lande & Herman, 2004); and negotiation, in which attorneys representing the clients often posture as if they will proceed to trial, sometimes burying one another in legal papers, motions, depositions, and the like. Mediators come from a variety of professional backgrounds, most commonly law or therapy, but also finance and clergy, among others. Regardless of their background, mediators are trained to identify and organize the topics at hand; provide basic legal information (without giving legal advice to either one against the other); ensure that the mediation supports each person’s understanding of the issues; generate options for consideration; and establish and maintain a balanced and respectful process to reach a workable agreement. Mediators make space for each person to speak to his or her concerns and realities (Pines, Gat, & Tal, 2002), and have skills in minimizing escalations, normalizing the struggles, and resolving conflicts should discussions get bogged down. Although there are many applications for this process, both within and outside the realm of family mediations, divorce mediation has gained significant attention because the divorce rate has remained high and clients have become increasingly knowledgeable about, and daunted by, the personal and economic costs to the adversarial process (Pruett, Williams, Insabella, & Little, 2003; Rotman, 2005; Taylor, 2004). In broad brush strokes, divorce mediation addresses parenting schedules and decision making for the children, child support, maintenance (previously called alimony), and the division of marital assets and liabilities. And although mediation between partners tends to be considered synonymous with divorce, it is also used by gay and lesbian couples and cohabitating heterosexual couples who may not (yet) bear a legal obligation to formalize the dissolution of their relationships but who elect to engage a guided process upon separating and wish to reach a formal agreement that
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memorializes their understandings. In addition, some clients request mediation services for prenuptial and post marital agreements. Although the talks in mediation are direct, the solutions are not directed. The working assumption is that even in the most challenging cases, clients have resources that can be discovered and used to resolve their own matters. Just as a couple has been making their own decisions to marry (or live together), have children, and buy or rent property, they are seen as equally capable, with information and guidance, to approach and make the decisions that need to be reached to divorce. Mediation is predicated on the belief that if helped by someone who can impart a grasp of the issues and who has skills at diffusing and resolving conflict, most couples not only can but would do well to craft their own agreements. Mediation may also serve a preventive function in the well-being of its clients (McIntosh, 2003). So often, families who weather the adversarial process continue to suffer from the fallout of that experience for years to come, whether exacerbated by personality structures that organize best in a polarizing context or by induction into a conflictual process that is endemic to the system itself (Kelly, 2003). After sides have been drawn, positions can become calcified, and even the best psychotherapy can be too little, too late. Mediation can often help people start the path to divorce with better footing (Severson, Smith, Ortega, & Pettus, 2004), allowing for greater collaboration, or at least communication, both during and after divorce. A 12-year longitudinal study that compared mediation with litigation (Emery, Sbarra, & Grover, 2005) found that mediation led to substantial long-term benefits for parents and children, especially in the relationships between parents, and between children and nonresidential parents. A recent review of major family mediation studies published over 20 years indicated that family mediation was consistently successful in resolving custody and access disputes and comprehensive divorce disputes with a high degree of client satisfaction in both process and outcome measures (Kelly, 2004).

FINDING THE BOUNDARY: THERAPYAND MEDIATION
In contrast to the adversarial process, there are definite similarities between mediation and therapy. Mediation encourages, rather than discourages, communication between clients. Transparency and collaboration in the stance of the mediator, along with effective and reflective listening, reframing, and power balancing, may be usefully employed in the mediation process. Mediation emphasizes problem solving rather than winning (or destroying); there is a commitment to look for solutions that benefit everyone, versus those that privilege one family member over another. The seemingly simple statement that ‘‘it is more difficult to stretch the same dollars over ´e to a different two households rather than one’’ offers a different voice and an entre kind of problem solving than that of an attorney who coaches his or her client to inflate a personal budget to justify a greater share of the marital pie without regard for other family members. And not unlike Milton Erikson who, upon meeting the patient who believed he was Jesus, responded, ‘‘I hear you’ve had experience as a carpenter,’’ there is a commitment to offer the most nonpathologizing and constructive response possible to even the most daunting and problematic material. A particular attention to language is important to both fields. For example, many mediators, depending on the latitude within their respective jurisdictions, have elected to craft agreements without using the word custody, and to substitute the
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language of parenting plans (that address the children’s schedules) and decision making (in areas of education, medical care, religion, and extracurricular activities). This language can describe the contribution of both parents without defining either in negative language (i.e., eliminating the labels for both custodial and noncustodial parents) and reduces the likelihood of custody battles that are to be won or lost in favor of plans that incorporate and underscore the contributions of both parents. Being a mediator has taught me more than I ever imagined about neutrality. I am often reminded of the producer of the presidential debates whose camera work was monitored with stopwatches so that there was precisely equal viewing time for each candidate. A therapist sometimes has latitude in spending more time with one person in session, particularly if it feels as though it will repair or improve the fabric of the family for all concerned. In mediation, there is very little elasticity because feeling marginalized or discounted happens in a heartbeat, and there may not be the room or the trust to wait for the mediator to rebalance the ‘‘air time’’ in a subsequent meeting. A colleague tells the story of a mediator who, upon reaching the financial discussions, had one calculator and handed it to the husband; the couple did not return. (The general rule is three calculators, one for each of the parties and one for the mediator.) However, it is important that the many similarities do not obscure the distinctions between mediation and therapy (see Table 1). Although there are different schools of thought within the mediation field, it is a small percentage of mediators who prioritize transforming a couple’s ongoing relationship; in general, staying close to the stated goal of a signed agreement is both necessary and respectful to the clients involved. Mediation is designed to help people make decisions that can be crafted into a legal document. Feelings are respected and acknowledged in mediation, but they are not tied to an in-depth exploration of family history or dynamics. The past is used more to illuminate possible solutions, (i.e., ‘‘How have you managed the parenting schedule while you’re together?’’), and rarely to understand emotional resonance (‘‘So you worry that you may become marginalized in the way that your mother was margin-

TABLE 1 Therapy and Mediation: Understanding the Differences

Therapy Involves both parties Goal oriented Insight Sometimes Varies Used by therapist and elicited from client Sometimes the past is used to understand the problem Respected and often worked through Often Multigenerational Always

Mediation

Always clearly defined Used by mediator to frame and resolve issues The past is used to discover examples of solutions Respected and acknowledged Always Focus on relevant parties

Historical approach to problem Feelings

Uses a resource model Genograms

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alized in her family’’). New mediators coming from the therapy field find it particularly startling that it is possible to know the details of a couple’s tax return and, in some cases, never learn how the couple met and what happened to the promise of their relationship. And when sadness and regret do become evident in the sessions, the job of the mediator is to recognize the pain that is being expressed and, in some instances, how bittersweet it can be to come to resolutions and agreements in separating when consensus was not easily reached during the marriage. However, in deference to the clients’ agency and respect for their choices, it is not the mediator’s role to introduce a discussion of why things went wrong or how the relational issues in the marriage can be more fully understood. However, sometimes clients seem to invite more of a therapeutic process than a mediation process, and this needs to be addressed with a particular sensitivity to their concerns. Occasionally, clients approach their discussions with such care and tenderness that it feels as if there is still life in the marriage. In these situations, the mediators may wonder whether their clients are in the right process, and with their consent, it is appropriate to interrupt the mediation and inquire if it is the marriage itself, or something within the marriage, that needs to end. At other times, one or both members of a couple may weave back and forth between the resolve to forge ahead separately and the sadness or nostalgia for better times. Being able to recognize and describe this dynamic to the clients and check in with them on their thoughts about moving forward adds value and is within the scope of the mediation process. However, depending on their responses to these observations, clients who continue to express confusion (in contrast to regret) about the direction of their relationship, along with those who remain so attached, may, at their discretion, benefit from a referral to therapy, particularly if they have not recently explored this option. At other times, a referral to individual therapy seems more compelling and essential to the integrity of the process. If one member of the couple appears eager to reach a legal agreement and the other keeps drifting toward discussions that try to understand, or repair, the marriage, it may not be ethical to continue mediation without adding a process that helps the reluctant client process and integrate what is happening. Sometimes inviting both people to think ahead as to how the agreement will feel in practice 6 months, as well as 6 years, down the road can help a client hold the complexity of wanting the marriage but at the same time advocating for his or her needs in a divorce. But if one person remains distracted or eager to please in the hope of reclaiming the marriage, the mediation process may need to terminate, or at least be put on hold, until such time that it is clear that each client is prepared to speak and work on his or her own behalf. When these needs for therapy become evident, it is sometimes tempting for a mediator who is also a therapist to engage the therapeutic conversations as well, either under the umbrella of mediation, or as a separate process, while mediation gets put on hold. Sometimes it is the clients who raise this possibility when they suggest that ‘‘if the marriage takes a turn toward resolution, the mediator will be able to cover it either way.’’ However, as related as the two processes might seem, the lines of inquiry and the goals are so distinct that it protects the integrity of both processes and offers an important clarity for the clients when a separate process and practitioner is maintained for each. Similarly, trainees who study mediation with a background in family therapy have sometimes asked about the possibility of offering mediation to couples they are
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currently seeing, or have seen, in treatment. A referral to another provider is strongly indicated and better serves those involved in a number of important ways. First, it more readily preserves the possibility of returning to therapy should the need arise. Additionally, the containing and limiting of ‘‘therapy-like’’ conversation that occurs in mediation is more readily understood and accepted when the process and the provider have remained distinct. Finally, at such a vulnerable time, creating any doubt about a conflict of interest (i.e., that the therapist may have supported the separation because he or she also maintains a mediation practice) is an unnecessary risk in most areas where the availability of other providers is more than adequate.

BARRIERS TO THE MEDIATION PROCESS
Mediation is used by people with a wide range of financial sophistication and access to resources. I have worked with couples in which each person arrives with his or her own laptop and spreadsheets, and with other clients who had difficulty in writing numbers. Some couples have arrived at mediation after spending seven figures on fees in the adversarial system without reaching closure, and others would be hard-pressed to afford the retainers requested by even the most modestly priced attorneys. Given the enormous differences in the financial and emotional costs involved, why doesn’t everyone try to mediate, versus litigate, a divorce? In the popular culture, a number of beliefs might discourage the use of mediation (Collins, 1999). One assumption is that divorcing partners are by definition enemies, and enemies engage processes designed to defend themselves and fight against their opponents. Although friendly divorces are unlikely to make headlines or form the central plot in film or theater, in fact, a large percentage of divorces begin with, or ultimately result in, people who are cordial, or neutral, toward one another (Ahrons, 1994). Additionally, some people believe that if the problems faced are essentially legal, they are best addressed by attorneys and judges. In fact, a frequently noted complaint by clients is that the law treats divorce like the dissolution of a business, and in many states, the reasons for the divorce are not to inform the terms of the settlement. Although there are many legal problems to address, the problems are both legal and relational; people who have been family are undergoing, or formalizing, an ending or a major change in their relationships. Most people don’t have much experience with ending family ties; even a sibling or parent with whom you haven’t spoken in years is still family, and one generally doesn’t go to court to declare otherwise. There is also a related assumption that people who are getting divorced are not able to make their own decisions. Often times, this belief is most closely held with regard to financial matters. Although this is a very confusing time, it is more confusing for some than for others because our society has many more requirements about sharing information during a divorce process than during a marriage. Spouses vary widely in their information about money and their access to it in marriage (Katz, 1994); the transparency and sharing of detailed information that is legally required during a divorce is more congruent with the patterns in some marriages than in others, such that sometimes one or both people are fluent in these matters, and for others, this is a very new paradigm. At this very fragile time, when many givens seem to be up in the air, a client who consults an attorney may hear, ‘‘Don’t worry, I’ll take care of everything.’’ Some clients are specifically advised that spouses should stop talking to each other and allow
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all dialogue to travel from attorney to attorney. ‘‘I’ll take care of everything’’ is a rarely extended promise in most contexts, and it can be appealing to a vulnerable client wishing for protection. It is a competing paradigm with the idea that in a crisis, people do well to learn all they can and consult experts when indicated, while retaining their own authority in the matter at hand. Realistically, lawyers can’t guarantee an outcome, and as such, they cannot in essence take care of everything in the way that many clients are likely to hear the offer. Ultimately, it is the clients who live with the result of the divorce for years to come, and once their personal authority has been surrendered, clients may experience this as a loss of control in the process that can ultimately be quite disturbing. Some clients remain upset about their experience with the legal system for years to come. Other considerations focus on whether the clients can engage in or be supported through the process in a way that reads as fair to the parties and the mediator involved. Is there evidence of domestic violence, or of intimidation, in the couple? Can each person, either reflexively or with the support and skill of the mediator, speak in his or her own voice and represent his or her concerns and perspectives? Is there a need for formal discovery, a process by which attorneys independently verify financial information that is being relied upon in the discussions? These are not cut-and-dried distinctions, because there is much that can be done in mediation to balance power and structure the discussions in the room. Clients can also agree to build in additional safeguards during more complex mediations, such as professional evaluators or forensic accountants, in ways that can add a level of verification to the information being addressed. It is also important to realize that if there is a climate of intimidation, or if someone is expert in hiding assets, this may affect the outcome in a negotiated or litigated divorce, but sometimes these factors appropriately preclude mediation as an option. In one case, a young mother called to inquire about mediation, hoping to revisit an agreement already crafted by her husband. In the agreement, she had waived maintenance and agreed to nominal child support even though she had a medical condition that made it unlikely that she could juggle employment while her son was still at home. In this case, the mediator referred her to an attorney for legal representation because the situation was very unbalanced, and there was a possibility that aspects of her medical condition might at times diminish her strength and interfere with her ability to advocate for her own interests in mediation.

CASE EXAMPLES
Sometimes mediation serves as a more direct, perhaps benign, approach to a predictable outcome. So, for example, when an agreement is reached in which, following a long-term marriage, the assets are identified and equally divided, or a parenting plan is agreed to that is within the general outcomes in a given jurisdiction, the process may be different than in a litigated divorce, but on paper, the agreements look very much the same. At other times, mediation allows for a much more creative and personal solution to a couple’s parting of ways. Once I helped an older couple resolve that their modest apartment would not be sold until a frail and aging pet died, even though the equity in their home was the largest asset they had to divide. In another case, there was much emotional significance attached to a harp that was initially owned by the father but was in use by the child in the home he shared with his mother. The couple agreed to
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transfer the ownership of the harp to their son so that the father could relinquish the instrument (which he could not bring himself to give to the mother), and the mother would not feel sad when she heard it played (because it was no longer part and parcel of the father). Mediation can allow for very personal dialogue, as in the following case. A young White couple, married for a handful of years and without children, had divided their liquid assets and made provisions for a period of spousal maintenance in keeping with the disparity in their incomes. Empathic with each other throughout the process that they were about to complete, he delicately raised the question of her engagement ring, and she looked visibly pained.
Husband: Is there a standard for what is done? Mediator: By law, it is a premarital gift, and so according to the law, it would be separate property, belonging to the wife. Wife: Your aunt would have a fit; you should have it. Mediator: Are there some special circumstances about the ring? Wife: It’s been in his family forever. Husband: It was my great-grandmother’s. Wife: And it is the most perfect stone you have ever seen.

In mediation, we were able to address the law and the sentiment, with the resolution that the ring was returned to the husband, and the wife received financial compensation for its value. In another case, an Asian couple married more than 30 years approached mediation with a formality that did not fully mask the weariness at the end of their long and stressful marriage. In mediation, they negotiated the distribution of their property and businesses such that he retained his photography studio and she retained a commercial shop that he had opened but that she had run for many years. They went on to discuss the discrimination that he faced because of his age and his minority status, and each agreed that the sales of his photographs had slowed. The wife stated, ‘‘If I don’t help him, he won’t make good work, and I don’t want that to happen. The quality of his work is more important than the sales, and that will be good for our sons.’’ We were able to come to an agreement that granted him access to the work area in her shop where he could prepare for his shows, while leaving her sole discretion to coordinate this with the workers in the store. Sanctions were also included if the husband overrode her authority. This is a level of detail and nuance that would never have appeared in a court ruling.

A Parenting Plan for James
The following case offers an in-depth description of what transpired from an initial phone call requesting mediation, through to a resolution of the parenting issues. Interspersed with excerpts from the sessions is a discussion of the considerations that informed the mediator’s approach. An African American couple, both in their late 20s, requested mediation services after living apart for 1 month. Having never been married (and living in a state that
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does not recognize common law marriages), the issues they wanted to address focused exclusively on the parenting of their young son. As is common to the practice of many mediators, after receiving the first phone call, in this case from the mother, I asked to speak to the father before scheduling the first appointment. In this way, I had the opportunity to introduce myself and the process to each person before our meeting, which was scheduled for the following week. I opened the first session by inviting any additional questions that either one might have about mediation and asked them to let me know where they would like to begin. In the opening moments, I learned that the father had not seen his child from the time the mother had moved out until just before our meeting.
Kevin: I just want to see my child. I saw him for the first time in a month yesterday, and everything else is a far second. I just want to see my child. Mediator: So one of your concerns is a parenting schedule . . . when you will see your son. And how old is he? Kevin: 17 months. Mediator: And his name is? Kevin: James. Mediator (to dad): So that’s one of the things you really want to get clear on. (to mom) And Gloria? Tell me about your concerns. Gloria: Well, we moved, so right now his schedule has to be according to my move. I come into the city every other weekend to drop my daughter off with her dad, and that was the schedule that was told to him. We’re planning to move back to the city, but right now, we’re working according to my schedule, which is every other weekend. Mediator: So you have a schedule that’s already is in place for your daughter. And how old is she? Gloria: She’s 4. And I prefer them to be together when she’s not away. Mediator: So you’re moving ahead to what the schedule might be . . . are there any other concerns in addition to when your son will be with each of you? Gloria: I want to talk about holidays. Mediator: So part of it is the regular schedule, another part is special concerns for a holiday schedule. Gloria: And I’m going to maintain physical custody of James. Mediator: I see you’ve already done a lot of thinking about all of this. I won’t be making any decisions for you, but I want to make sure you each know what the issues are and that you reach agreements that work for both of you, and for your son. Kevin (Turning to Gloria): When we spoke on the phone, I’m not okay with every other weekend. I’m not okay with that. Mediator: You’ve both been talking about the schedule; would that be a place for us to begin?

In the first few minutes, their conflict was very open, and they clearly experienced considerable tension focused on the parenting schedule. To begin the process
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effectively, each parent’s concerns were heard and recognized, and I remained clear that we would proceed in a way that would enable each of them to participate in decision making. This included reaching a consensus about the agenda. To create some space from their initial, polarized positions, and also to gain more background so that the concerns that informed these positions could be understood, I asked for further clarification on matters that impacted the schedule. Gloria stated that although she hoped to return to New York City in 4 months, she was currently living more than an hour away. When I asked if the two of them had discussed her time line, Kevin stated that this was the first he had heard about her plans to return to the city. Gloria volunteered that communication between them was poor.
Gloria: We do not have a talking relationship, we do not communicate with each other, nor do I wish to communicate with him, other than being here and discussing the child. That’s it.

I acknowledged their tension, and how difficult it was to have these discussions, and soon refocused their attention back to their son.
Mediator: So could you tell me a little about James. How is he doing? Gloria: He’s doing fine, he’s a happy kid. He’s great. He took a little time adjusting to his new home, but he’s adapted very quickly. Mediator (to dad): So you said you spent time with him this weekend? (Dad nods.) And how was that? Kevin: That was perfect. But like I said, I didn’t see him for a month. Mediator: And that felt too long. Kevin: That was way too long. He is my first child, my only child. Mediator: And what kind of relationship do you have with James? Kevin: We already have a very strong relationship. I’m the play guy, the fun guy. Mediator: And my sense is the reason you are here, what I felt both in the phone calls and today, is that it is important to each of you that James have a relationship with both of you. Is that fair to say? (Mom nods vigorously.) Mediator (to dad): You had a suggestion that a month was too long, and (to mom) you had suggested every other weekend . . . and (to dad) I don’t know if you had a chance to think about that. Kevin: I thought about it, but that would be too little . . . four days a month . . .

After intentionally drawing out their mutual concern for James and inviting a picture into the room of Kevin’s relationship with his son, we then proceed to explore various options, including the expansion of the weekend to include Friday night. Both parents agree that it would not work for Kevin to commit to Friday nights because he goes out those nights, and Gloria emphasized her need for reliability to plan her life and navigate the train schedules. Her concerns about travel time and predictability were acknowledged, along with her wish that Kevin not come to her home to see James. Gloria then added, almost parenthetically, that a manageable Sunday night return was especially important because she was getting up very early to bring them
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all back into the city on Monday mornings. When I asked about that, she explained that she had tried taking James to a new babysitter, but he had not adjusted well. She was now bringing him back into the city, 5 days a week, to his old babysitter, which was just a few blocks from where Kevin still lived.
Mediator: So there’s lot of energy on your part, getting him . . . getting both children back and forth every day. Gloria: They both come back and forth every day. Mediator (to Kevin): Did you know that? Kevin: This is the first I am hearing about it.

Hearing that, I nonetheless chose to continue with a topic of greater consensus, and we proceeded to hammer out the details of the weekend schedule. They agreed on times that allowed for her travel and still enabled Kevin to have extensive time to implement the kind of outings he enjoyed with James. Having reached an agreement about the weekend schedule, I then asked about the possibility of midweek time, given that James was nearby during the week.
Gloria: No. I told Kevin before, I have a daughter, and they rely on each other. Right now they are going through a huge adjustment. When we get back to New York, he can have him on the days he wants him. Right now it’s very tough breaking them apart. Mediator: So one of the concerns you have is how the children are leaning on each other. Gloria: Right.

This opened a brief but important discussion about Gloria’s daughter, Caroline. She discussed her daughter’s upset over the loss of her connection with Kevin. She explained that there had been a very real parent-child connection between Caroline and Kevin that had now ended, and Caroline had had no closure. She anticipated that if Caroline would see her brother going off with Kevin, she would have a very hard time handling her emotions. I asked Kevin how he was doing with the loss of his relationship with Caroline, and he quickly responded that this loss ‘‘did not have to be.’’ Although recognizing that Caroline has her own dad, he affirmed his relationship with Caroline.
Kevin: If James comes with me, Caroline can come with me. I have one child, and I want my relationship with my child to be as strong as possible. But I love Caroline like my own. Mediator: So, Gloria, what I am hearing is that Kevin agrees with you, and he also feels that he has an important role with Caroline, and he’s open to continuing to be in her life. Is that something that is important to you? Gloria: No. I am not sending Caroline with Kevin. Maybe I didn’t express myself clearly . . . Mediator: Let me back up; I think I wasn’t clear. In my own mind, there are any number of options. One thought I had was about Kevin visiting the children while they are in care. This way James has some consistency with his dad, and Caroline might see him, too. Some parents have overnights during the week, but others see their kids for a period of hours, at the end of the day, or during the day.

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Gloria: I’m fine with all these options, as long as when it is time to go home, we all go home together. He can even go get his son and bring him back to me by 4:30 p.m. Mediator: So I understand that you want the kids to go home together, but you are very open to Kevin seeing the children during the day. Gloria: Yes, because there are other children in care and that will distract Caroline when her brother goes with Kevin. Mediator: Is there also the option for Caroline to go with Kevin? Gloria: That will be up to her. Mediator: So that’s an open questionFand we don’t know the answer to that yet. Gloria: Right. Mediator (to Kevin): So you’ve listened very patiently . . . . One idea is that you could go during the day and see James. Would you be open to that? Kevin: I’m open, but August is just one month, and when my work schedule changes next month . . .. Mediator: I know I’ve been doing this piece by piece, and there are 4 months to think about before Gloria moves back. With your permission, could we talk about August first? And then the other three months? Kevin: Okay. Mediator (to Gloria): Is that okay with you? Gloria: Yes.

By partializing the issues, it was easier to find areas of consensus, and the parents continued to discuss what could be incorporated into a plan for the remaining weeks of the summer. Gloria and Kevin agree that Kevin would see James three times per week in August, in addition to every other weekend, and he had the option to see him in day care or take him out during the day as long as he was back in time to return with Gloria and his sister on their evening train. We then approached what felt like the far more daunting schedule for September through November. Kevin was on vacation during August, but he was returning to work in September. After exploring many possibilities, the first opening that both parents could agree to was to take advantage of Kevin’s more generous holiday schedule, and they agreed that Kevin would see James in day care whenever Gloria was working and he was not, just as he would in August. Gloria then asked to revisit the possibility that Kevin might expand his weekends with James and take him from Friday after work until Monday morning. Initially Kevin had trouble imagining what he would do with James at the end of the day on Friday, and we revisited his self-description as a fun dad. I spoke a bit about some of the changes that often occur in families post separation, in which each parent sometimes experiences an expansion of roles. So, for example, both parents might incorporate time for fun and the more day-to-day routines of family life. Following that discussion, Kevin agreed to the expanded weekend schedule that Gloria suggested. He then offered to enlist the support of his supervisor to leave work early at least once a week. In this way, he could see James in day care and maintain midweek contact
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during the next few months. As this part of the session closed, Gloria admitted that ‘‘James was a handful’’ and that having him go with his dad was something she would welcome. The first session closed with a discussion about outstanding issues, including holidays. The parents suggested that they would divide each Christmas, with James going with mom on Christmas Eve through Christmas morning, and going with his dad for the balance of Christmas Day. They talked extensively about staying flexible on most holidays, and I explored with them the pluses and minuses of staying unstructured. I encouraged them to consider some fall back position in the agreement so that in case they could not agree during any of the coming years, they had something that felt fair and balanced to them that they could implement. I added that if they agreed to deviate from a written agreement at any point down the road, no third party would intervene, so they could both develop a structure and remain flexible as long as it worked for the two of them. Two weeks, later Gloria and Kevin returned for their second and final session. The mood was tangibly calmer, and I checked in and learned that they had successfully implemented the parenting schedule and that it had been working well from both their perspectives. They rather seamlessly agreed to joint decision making in all categories of James’s life, including education, religion, medical care, and extracurricular activities, and Gloria then asked to revisit the subject of holidays. They listed the holidays that were important to them, and this time, Gloria suggested that they alternate holidays, using a formula in which James would be with one parent during the odd years and with the other parent during the even years. This reflected a shift that would allow for more separateness in their ongoing lives. Kevin was in agreement. With further discussion, they agreed to this, with the modification that Thanksgiving would go to the parent who did not have the other holidays, so that neither parent would go an extensive amount of time without holidays with James. Gloria then asked to revisit the midweek plan, but this time her concerns were clearly different.
Gloria: I want to touch base on the day care issue. The understanding should be that if Kevin wants to come by more than three times a week he should be able to, as long as he brings James back. Mediator: And is that true for during the school year as well as August? Gloria: Yes. Mediator: Kevin? Kevin: Fine with me. Mediator: So I’ll amend the agreement to take out ‘‘three visits a week during August’’ and put in ‘‘as often as possible, at the father’s discretion . . .’’

In this session, they also developed a plan for summer or vacation schedules that would enable each parent to have extended time with James, including parameters for providing ample notice and contact information to the other parent. We also talked about attending to James and his development, especially for the first summer or two, to see when he was ready to have extended time away from either parent. At my
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suggestion, they also built in a mechanism that gave priority in scheduling vacations to one parent in even years and to the other parent in odd years, thus avoiding possible collisions in scheduling in the years ahead. The good will and progress was almost derailed in the last topic for discussion, that being relocation. Gloria said that she wanted the option of moving 3 hours away, initially by car, but perhaps by plane. Kevin was clearly pained by this and was not in agreement. I determined that although she had no immediate plans for relocation other than her return to New York, she maintained that she had never desired to remain in New York, and this was well known to Kevin. We talked about this in some detail, including the difficulty in anticipating all possible scenarios that might occur given the age of their son, along with the willingness of courts to revisit this very complex matter if it should become relevant, regardless of what might appear in an agreement. They agreed instead to put a mediation clause in their agreement, stating that if either parent wished to relocate outside the New York area in years to come, they would first revisit mediation to see if they could agree on a way to rework the relevant parts of their agreement prior to bringing any court action. Just like in therapy, it is hard to know exactly what moves a case along in the mediation process. It seemed helpful to create a space in which each parent’s concerns were articulated and acknowledged. In addition, the concerns that Gloria held for her daughter seemed pivotal. They would not likely have gained attention in an adversarial process because Caroline had her own father with whom she maintained an ongoing relationship, but omitting that connection would not have done justice to the richness of the relationships in this family. Furthermore, in an adversarial process, it might have taken a great deal more time to learn that James was in day care nearby and accessible to his father during the week. Although there had been a very unfortunate disruption of the father-son relationship for one month prior to mediation, and it was impossible to restore the time that was lost, the disruption remained contained, and they were helped to move quickly toward a plan that fostered the ongoing relationships of all family members. As Gloria acknowledged, James’s time with his father was also something that was of benefit to her. In an adversarial process, these truths are often buried or denied.

CONCLUSION
In conclusion, although mediation is not for every family, it offers an opportunity to enlist collaboration at a potentially high conflict time, thereby reducing the risk of harmful and potentially longstanding escalations. An understanding of mediation allows family therapists to have an informed discussion of this option with their clients and may help them approach their legal agreements in a way that, like therapy, values the concerns of all family members. In a further similarity with family treatment, mediation draws on the resources and knowledge of its participants to allow for creative solutions to the needs of the families who engage this process. REFERENCES
Ahrons, C. (1994). The good divorce. New York: HarperCollins. Collins, R. (1999). Divorce mediation: Applying common sense to the crisis of divorce. Unpublished manuscript.

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Emery, R., Sbarra, D., & Grover, T. (2005). Divorce mediation: research and reflections. Family Court Review, 43, 22–37. Katz, E. (1994). It’s a question of dollars and cents: Prioritizing economic issues in women’s treatment. In M. Mirkin (Ed.), Women in context, toward a feminist reconstruction of psychotherapy (pp. 453–461). New York: Guilford Press. Kelly, J. (2003). Parents with enduring child disputes: Multiple pathways to enduring disputes. Journal of Family Studies, 9, 37–50. Kelly, J. (2004). Family mediation research: Is there empirical support for the field? Conflict Resolution Quarterly, 22, 3–55. Lande, J., & Herman, G. (2004). Fitting the forum to the family fuss: Choosing mediation, collaborative law, or cooperative law for negotiating divorce cases. Family Court Review, 42, 280–291. McIntosh, J. (2003). Enduring conflict in parental separation: Pathways of impact on child development. Journal of Family Studies, 9, 63–80. Pines, A., Gat, H., & Tal, Y. (2002). Gender differences in content and style of argument between couples during divorce mediation. Conflict Resolution Quarterly, 20, 23–50. Pruett, M., Williams, T., Insabella, G., & Little, T. (2003). Family and legal indicators of child adjustment to divorce among families with young children. Journal of Family Psychology, 17, 169–180. Rotman, A. (2005). Commentary on ‘‘Empirical and ethical problems with custody recommendations’’. Family Court Review, 43, 242–245. Severson, M., Smith, S., Ortega, D., & Pettus, C. (2004). Judicial efficiencies in child custody disputes: Comparing mediated and litigated outcomes. Journal of Divorce and Remarriage, 40, 23–40. Taylor, R. (2004). Therapeutic intervention of trauma and stress brought on by divorce. Journal of Divorce and Remarriage, 41, 129–135.

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