Final Exam

Running head: FINAL EXAM PAPER 1

FINAL EXAM PAPER 5

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EDUC 746 Conflict Resolution

Final Exam Paper

Part One

Please complete the following chart using your results from the United States Institute of Peace Conflict Styles Assessment. (Remove these sentences from your final submission. The completed chart should be the only item under the heading Part One.)

Conflict Style

Percentage Results

Problem Solver

Accommodator

Avoider

Competer

Compromiser

Part Two

Please complete the following chart, analyzing your results from the United States Institute of Peace Conflict Styles Assessment. (Remove these sentences from your final submission. The completed charts should be the only items under the heading Part Two.)

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202020 Spring 2020 EDUC 746-B03 LUO

Course Content

Module/Week 6 — Mediation

Reading & Study

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202020 Spring 2020 EDUC 746-B03 LUO

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Reading & Study

Content

Textbook Readings

Barsky: pp. 238–276, ch. 7

Conflict resolution for the helping professions

Presentation: Mediation in Conflict Resolution

EDUC 746

Final Exam Paper Instructions

Overview

Throughout this course you have studied different conflict resolution styles and strategies. For your final exam, you will complete an online assessment from the United States Institute of Peace. There are 30 questions that will assist you in determining your conflict style. After completing the Conflict Styles Assessment, complete the Final Exam Paper Template provided in the Assignment Instructions folder in Blackboard, and submit to Blackboard.

Instructions

1. Navigate to

https://www.usip.org/public-education/students/conflict-styles-assessment

2, Select “Start Survey”.

3. Complete the 30 question assessment by selecting one phrase out of the two phrases that best describe how you deal with conflict.

4. Using the results page, complete the Final Exam Paper Template Part One and Part Two located in the Assignment Instructions folder on Blackboard under Final Exam Paper Instructions. Do not navigate away from the Results page or you will lose all your results!

5. After completing Part One and Part Two with your results, complete the rest of the Final Exam Paper Template utilizing your Barsky text, Journal Articles Critiques, and the Bible to support your answers. Part Three and Part Four

Submit your pdf results and chart by 11:59 p.m. (ET) on Sunday of the Module/Week 7.

Final Exam Paper Assignment Rubric

Criteria

Levels of Achievement

Content 70%

Advanced

Proficient

Developing

Not present

Part One

5 points

All parts of the chart are complete with the percentages earned on the Conflict Styles Assessment. No other information is present under Part One except the chart.

4 points

The chart is missing one of the five percentages earned on the Conflict Styles Assessment. No other information is present under Part One except the chart.

1 to 3 points

The chart is missing more than one of the five percentages earned on the Conflict Styles Assessment and/or there is additional text besides the chart under the Part One heading.

0 points

Not present

Part Two

14 to 15 points

All four conflict styles are identified on the two charts. The candidate fully explains the highest and lowest scoring styles and the most and least surprising results.

13 points

All four conflict styles are identified on the two charts. The candidate adequately explains the highest and lowest scoring styles and the most and least surprising results.

1 to 12 points

All four conflict styles are identified on the two charts. The candidate inadequately explains the highest and lowest scoring styles and the most and least surprising results.

0 points

Not present

Part Three

38 to 40 points

Candidate fully explains each Conflict Style, the strengths and weaknesses of the style, and a personal application of the style with support from the text and/or Journal Article Critiques authors within separate paragraphs.

35 to 37 points

Candidate adequately explains each Conflict Style, the strengths and weaknesses of the style, and a personal application of the style with support from the text and/or Journal Article Critiques authors within separate paragraphs.

1 to 34 points

Candidate inadequately explains each Conflict Style, the strengths and weaknesses of the style, and a personal application of the style with support from the text and/or Journal Article Critiques authors within separate paragraphs.

0 points

Not present

Part Four – Biblical Worldview

24 to 25 points

Candidate responds to all eight questions concerning Joshua 22 with full and complete sentences. Candidate includes verses to support responses in parenthesis after the response.

22 to 23 points

Candidate responds to at least seven of the eight questions concerning Joshua 22 with full and complete sentences. Candidate includes verses to support responses in parenthesis after the response.

1 to 21 points

Candidate responds to less than seven of the eight questions concerning Joshua 22 with full and complete sentences. Candidate includes verses to support responses in parenthesis after the response.

0 points

Not present

Part Four – Response

19 to 20 points

Candidate fully responds to the prompt with a complete and full paragraph and includes support from the Bible, Barsky, and/or additional authors.

17 to 18 points

Candidate adequately responds to the prompt with a complete and full paragraph and includes support from the Bible, Barsky, and/or additional authors.

1 to 16 points

Candidate inadequately responds to the prompt with a complete and full paragraph and includes support from the Bible, Barsky, and/or additional authors.

0 points

Not present

Structure 30%

Advanced

Proficient

Developing

Not present

Mechanics and Sentence Structure

21 to 22 points

Ideas are arranged logically and clearly support the purpose. Sentences are well-phrased, varied in length and structure, and flow smoothly from one another. Each paragraph has at least 5 sentences. The writing is free of errors.

19 to 20 points

1 to 18 points

0 points

Not present

Template, APA Citations and Reference

22 to 23 points

Candidate utilizes the provided template and removes requested prompts from each part. Candidate correctly utilizes citations throughout assignment. Reference section is correctly formatted.

20 to 21 points

Candidate utilizes the provided template and removes requested prompts from each part. There are less than two errors on citations and/or reference section.

1 to 19 points

Candidate does not utilize the provided template and/or does not removes requested prompts from each part. There are less than two errors on citations and/or reference section.

0 points

Not present

237
M o D u l e
III
MeDIAtIoN
C hapter 1 defines mediation as assisted negotiation. T wo or more people involved in a conflict sit down with someone they trust to talk about their
differences. This broad definition encompasses a wide range of possible interventions.
Although programs, practitioners, and research studies have produced more specific defi-
nitions of mediation, these definitions are really describing specific models or variations
of mediation. Because there is no universally accepted understanding of mediation, it is
often difficult to discern what people are talking about when they say they are mediating.
Mediation has been defined differently for different times, cultures, and contexts of conflict
(Moore, 2014).
LEARNING OBJECTIVES
Upon successful completion of this chapter, you will be able to:
• Assess whether mediation is appropriate for particular people and their conflicts.
• Explain the mediation process, including issues related to collaboration, neutrality,
confidentiality power, and voluntariness.
• Prepare people for participation in mediation.
• Help people share their stories and identify key issues for mediation.
• Help people negotiate based on their underling interests, rather than positions,
power, and rights.
• Implement creative and collaborative problem- solving strategies to help people
move toward resolution.
• Help people write and formalize clear, balanced, and constructive agreements.
• Ensure that mediation processes address cultural diversity issues.
Although conflict resolution (CR) literature frequently describes mediation as a new
alternative, the mediation role has existed throughout history and in a variety of forms.

Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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238 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
238
Mediation is a natural way in which people help oth-
ers deal with problems. Friends, neighbors, elders,
clergy, parents, or community leaders have tradition-
ally assumed the role of mediator on an informal
basis. Virtually every society has had some form of
mediation. Anthropological research on mediation
in different societies ranges from modern Liberia to
6th- century Gaul, 13th- century France, early China,
contemporary Singapore, and the Kalahari Desert among the bush people (Bossy, 2003;
Cappelletti, 1979; Chia, Lee- Partridge, & Chong, 2004; Moore, 2014; Noone, 1997).
In many countries, traditional and faith- based models of mediation continue to this day
( Johnstone & Svensson, 2013). Mediation as a distinct profession and as an institu-
tionalized alternative to court and other dispute resolution systems is relatively new.
For example, the first court- based family mediation service began in 1961 at the Los
Angeles County Conciliation Court. California became the first state to mandate fam-
ily mediation in 1989 (Milne, Folberg, & Salem, 2004). Licensure and accreditation
for family mediators began in the 1980s, as did development of professional media-
tion courses and academic programs. The first textbook on mediation specifically for
helping professionals was published by Kruk in 1997. W hile many mediation programs
and associations have focused on developing professional standards and models of prac-
tice for mediators, other proponents of mediation have been looking at how to support
mediation as a skill set or approach to conflict that can be used by everyone, regardless
of professional status.
As the profession of mediation evolves, different approaches to mediation have devel-
oped. These approaches continue to be refined, critiqued, and evaluated for effectiveness.
The following section begins with an overview of four of the more popular approaches to
mediation: settlement- focused mediation, interest- based mediation, therapeutic media-
tion, and transformative mediation. After this overview, we will explore six key premises or
assumptions about the mediation process. We will then study settlement- focused and inter-
est- based mediation in greater depth, using a case study to demonstrate how various strate-
gies and skills fit into a seven- phase framework for mediation. While this chapter focuses
on settlement- focused and interest- based mediation, Chapter 7 provides a detailed explora-
tion of transformative mediation. Chapter 8 explores therapeutic mediation in the context
of family conflicts. The fourth section of the present chapter contrasts mediation with inter-
ventions used by other helping professionals. The next section describes how mediators
can address cultural diversity concerns. The role- plays at the end of this chapter provide
opportunities to practice each of the seven phases of mediation. Each role- play includes
an inventory of skills and activities that can be used for each phase. As you develop your
own model of mediation, you can draw from these inventories and identify which skills and
activities to incorporate.
APPROACHES TO MEDIATION
Settlement- focused mediation1 is geared toward helping people terminate overt forms of con-
flict by bringing them to agreement in an expeditious manner. Settlement- focused mediation
(SFM) is related to the rights- based approach to negotiation, as the mediator encour-
ages parties to solve their differences according to pre- existing rules, laws, or notions
1 SFM is sometimes called rule- based or structured mediation.
Take the first step in faith.
You don’t have to see the whole
staircase … just take the first step.
—Martin Luther King Jr.

Mediation 239
239
of fairness (State Justice Institute, 1998). Under SFM, mediators are task oriented and
relatively directive. They keep the parties focused on the key issues in dispute. They do
not delve into underlying issues such as emotions, relationships, and the history of the
dispute. Settlement- focused mediators may use a range of friendly persuasion techniques
to help move parties toward agreement. For instance, they may encourage each side to
make compromises, express dissatisfaction for lack of progress, and offer suggestions for
how the parties could settle the issues in dispute (Wall & Chan- Serafan, 2014). Although
settlement- focused mediators may be somewhat assertive with the parties, they do not
pound away at the parties or their positions. Rather, they honor the parties’ rights to make
self- determined choices, including the possibility of not reaching settlement. They also
balance their use of persuasion skills with strategies that establish their neutrality and
legitimacy: empathic listening, expressions of concern, trust building, and balanced atten-
tion to both parties (Wall & Chan- Serafan, 2014).
SFM is often used by judges in pretrial settlement conferences and by mediators
helping clients with financial or business disputes (Noone, 1997). Government officials
who are mandated by legislation to resolve certain types of disputes in accordance with
the law may also adopt this approach.2 The primary advantage of SFM is efficiency, as
matters can typically be settled in just one or two sessions (Woolford & Ratner, 2009).
A settlement- focused approach may save time, emotional energy, and financial costs
(including the costs of lawyers who may attend mediation with their clients). SFM may
be popular among people who do not want to delve into relational or emotional issues,
perhaps because of cultural reasons or because they believe that doing so will just stir up
further controversy. Although SFM is not specifically intended to help people resolve
underlying issues, it tends to de- escalate conflict by discouraging engagement in fighting,
litigating, and other adversarial processes. Some settlement- focused mediators meet only
separately with the parties, shuttling back and forth between them. This model allows
the mediator to focus the parties on problem solving, as well as allowing the mediator to
apply certain levels of pressure on each party to settle without embarrassing them in front
of the other party.
Some mediators use an approach related to SFM called evaluative or advisory mediation.
Evaluative mediators make assessments about the conflict and the best ways to resolve the
conflict (Moore, 2014; Pickar & Kahn, 2011). Evaluative mediators communicate these
assessments to the parties to encourage settlements of their disputes (Zumeta, 2015). There
are many risks in evaluative mediation: (a) the mediator’s assessment may be wrong, (b) the
parties may surrender their self- determination and simply acquiesce with the mediator’s
assessment, (c) the parties may abandon any attempt at collaboration in order to sway the
evaluator’s assessment in their own favor, and (d) the parties may become confused about
whether the role of the mediator is more like that of a facilitator or a judge. Proponents
of evaluative mediation suggest that it is a more efficient way of mediating, given higher
rates of settlement, less time to reach solutions, and use of the mediator’s expertise to bring
the parties to solution (rather than having to refer the parties to additional professionals
for assessments) (Lowry, 2004). Some mediators begin their process using a facilitative
approach, but will use some evaluative techniques in later stages to avoid impasse and to
bring the parties to agreement (Moore, 2014). I use the term settlement- focused mediation
in this book because, although it encompasses mediators who provide evaluations, the pri-
mary goal is fostering settlements rather than providing evaluations. Providing evaluations
2 Such officials are often called conciliators rather than mediators. Conciliation may be used by human rights
commissions, labor relations boards, and welfare review tribunals.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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2 40 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
240
is just one possible strategy that settlement- focused mediators can use to bring parties to
settlement.
Interest- based mediation (IBM) encourages parties to resolve underlying interests rather
than just their overt conflict. Interest- based mediators help parties move away from positional
bargaining , selling the merits of a win- win, cooperative approach (Moore, 2014).3 The role of
the mediator is basically to facilitate interest- based negotiation (as described in Chapter 6).
IBM is designed to give parties voice, improve communication, and generate outcomes that
are mutually satisfactory (Mayer, Stulberg, & Susskind, 2012). The mediator engages the
parties in creative problem solving, giving them opportunities to synthesize novel solu-
tions to resolve challenging conflict situations ( Johnson & Johnson, 2012). Among help-
ing professionals, IBM is more popular than SFM because it attends more to relationship
issues and encourages parties to make self- determined choices about how to resolve their
conflicts. As compared to SFM, IBM provides clients with more time to generate creative
options and enhance their relationships (Zumeta, 2015).
Therapeutic mediation is designed to help parties deal with psychological and social issues that
have contributed to the conflict and have blocked their ability to resolve it. Therapeutic media-
tors help parties restructure their relationships, enhance communication and problem-
solving skills, and deal with underlying emotional issues (Irving & Benjamin, 2002/ 2012;
Pruitt & Johnston, 2004). This model draws extensively from communication theory, eco-
systems theory, insight- oriented cognitive therapy, structured family therapy, and strategic
family therapy. Although therapeutic mediation has therapeutic aspects, it is not therapy
per se. The focus of mediation is still to resolve specific conflicts that the parties bring to
mediation.
Although therapeutic aspects occur throughout mediation, key differences from IBM
occur at the beginning and end of the process. In the initial phases, therapeutic mediators
conduct an assessment and premediation preparation to ensure that the clients are psy-
chologically ready to participate constructively in mediation. After mediation, therapeutic
mediators conduct follow- up sessions to see how the agreement has been working, includ-
ing its impact on the parties’ relationships with each other and other social systems in their
environment. Therapeutic mediation was developed for family conflicts, specifically in
separation and divorce situations. It can be particularly useful in work with high- conflict
parents, where the premediation interventions can help parents work through emotional
challenges and develop insights into how to past interactive patterns were problematic and
require change. Therapeutic mediation has also been used in victim– offender mediation
and reconciliation programs for cases diverted from criminal court (Hallevi, 2011).
Transformative mediation promotes empowerment and recognition between the conflicting
parties. This approach is designed to transform the way people deal with conflict by help-
ing them develop mutual understanding and self- efficacy. It downplays the importance of
settling specific issues in dispute (Bush & Folger, 2005; Gaynier, 2005). Transformation
is a humanistic, healing process. Ideally, transformation transcends the immediate parties
involved in the conflict. It engenders a philosophy that fosters social harmony and human-
ism (Bush & Pope, 2004). Proponents of transformative mediation suggest that transfor-
mative mediation is more empowering than other forms of mediation, giving clients greater
control over both the process and the agreement (Zumeta, 2015). Agreement is not the
goal of transformative mediation, though agreement may be a by- product.
Transformative mediation may be particularly useful in contexts where profession-
als deal with ongoing conflict, for instance, educational institutions, social agencies,
3 Some mediators call this approach facilitative mediation, integrative mediation, or principled mediation.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Mediation 2 4 1
241
child welfare, criminal justice, and healthcare systems. Consider the Affordable Care
Act, intended to make healthcare insurance and services more accessible (https:// www.
healthcare.gov). Although Congress initially settled the issue by passing the law in 2010,
implementing the new system depended on cooperation of various stakeholders, including
insurance companies, states, citizens, and Congress. W hen new policies or laws are passed,
each stakeholder may act in ways that support, resist, or subvert implementation (Prior &
Barnes, 2011). Insurance companies have generally supported the Affordable Care Act,
as it provided them with new customers and income opportunities. Opponents of the
act have repeatedly tried to have it repealed through Congress or ruled unconstitutional
in court. Some states opposing the new system have refused to implement its provisions
for expanding Medicaid or for providing a state- run health insurance exchanges. Many
Americans have simply refused to comply with the mandate to obtain health insurance.
So, the conflict continues. Had a transformative approach been used and implemented
effectively, the focus would not have been on passing a healthcare law, but transforming
the way Congress manages conflict. Ideally, a transformative approach would have allowed
members of Congress and other stakeholders to feel empowered, validated, respected, and
understood. It would have helped with ongoing relations, fostering support for health-
care reforms rather than resistance and subversion. Although transforming CR within
Congress may be a particularly challenging task, transformation is possible across a range
of institutions, agencies, and contexts of practice (Institute for the Study of Conflict
Transformation, n.d.).
Proponents for particular approaches to mediation sometimes argue for mediation
purity, that is, following a particular approach or model in a consistent manner. Other
suggest that mediators should be eclectic, blending strategies and skills from different
approaches as they see fit (G. Morris, 2015). In other words, mediators may use their
professional discretion to determine what combination of approaches would be most
effective in a particular situation. For learning purposes, I suggest learning each model
on its own, enabling you to practice the skills and strategies of each approach separately.
Practicing one model at a time can be enough of a challenge. At some point, you might
decide to blend approaches. However, you will have gained a certain level of expertise and
experience to help you determine whether and when a blending of approaches might be
appropriate.
BASIC PREMISES OF MEDIATION
Mediation has been described as is a voluntary, confidential, nonadversarial CR process
in which a neutral third party, the mediator, assists clients of relatively equal bargaining
power reach a mutually satisfying agreement (Moore, 2014; Neuman, 1992). This defini-
tion underscores a number of premises or assumptions about mediation:
• Mediation is voluntary.
• Mediation is confidential.
• Mediation is a nonadversarial process.
• Mediation is facilitated by a neutral third party.
• Mediation requires that the parties have equal bargaining power.
• The function of the mediator is to help the parties reach a mutually satisfying agreement.
On the surface, these premises may appear valid, even obvious. However, each has led to
significant debate among proponents of mediation. I will review each of these premises in
light of the four approaches to mediation.

https://www.healthcare.gov

2 42 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
242
1. Voluntary
To say that “mediation is a voluntary process” suggests that it is not imposed on people. If
they mediate, it is through free and informed choice. Although this may be true in some
contexts, mandatory and coerced mediation have been used in various circumstances.
In some jurisdictions, parties must try mediation before they have access to a court trial
(Hanks, 2012). In others, parties are encouraged to go to mediation in order to avoid
negative sanctions— for instance, police who advise citizens to go to community media-
tion or victim– offender mediation to avoid criminal charges (Charkoudian & Bilick,
2015; Villanueva et al., 2014) or educators who ask misbehaving students to try peer
mediation rather than receive detention or suspension (Conflict Resolution Education
Connection, n.d.).
Those who advocate for mandatory or coerced mediation suggest that people embroiled
in disputes need an incentive to try mediation, particularly if they have had no prior experi-
ence with it. If they do not like the way mediation progresses, they can terminate the pro-
cess without coming to an agreement (Hanks, 2012). Mandatory or coerced mediation fits
best with SFM or IBM. Both approaches view dispute settlement as a primary function of
mediation. They also allow the mediator to use some authority or pressure to move the par-
ties toward settlement. In contrast, therapeutic and transformative mediation place more
emphasis on empowering the parties to make their own decisions, including the right to
reject mediation.
One aspect of mediation where consensus exists is that mediators do not decide the
outcome for the parties (Shapira, 2014). Rather, they encourage clients to take responsibil-
ity for making their own decisions about how to handle their conflict. Mediators do not try
to suppress or eliminate conflict. Instead, they help parties deal with conflict deliberately,
consciously, and constructively (Moore, 2014).
The assumption of voluntariness raises three important questions for helping profes-
sionals: (1) Is it ethical to send people to mediation against their will? (2) Is it effective,
or will people simply resist the process? (3) Can mandatory mediation be provided in a
manner that is safe and fair, particularly when there may be a history of violence or power
imbalances (Patterson, 2009; Ricci, 2004; Semple, 2012)?
2. Confidential
One advantage of mediation often cited by proponents is that it is a confidential or pri-
vate process. Whereas court proceedings are open to the public, matters discussed within
mediation are generally supposed to “stay in the room.” Mediators offer clients confiden-
tiality to encourage them to trust the process and open up, even if the discussions turn
to potentially embarrassing topics. To protect the confidential nature of mediation, many
jurisdictions have passed laws that provide mediation the protections of privilege. Privilege
means that neither the mediator nor the parties can be subpoenaed and compelled to tes-
tify in court about what was said in mediation. Similar to confidentiality, privilege encour-
ages parties to communicate openly in mediation without fearing that what they say might
be used against them in a subsequent proceeding (American Arbitration Association,
American Bar Association, & Association for Conflict Resolution, 2005, Standard V;
Association of Family and Conciliation Courts, 2000; Family Mediation Canada, n.d.;
S. Goldberg et al., 2012; Uniform Mediation Act, 2003). Privilege promotes resolving cases
out of court, reducing the burden on courts as well as legal costs to the parties. Parties can
agree that mediation is confidential and privileged even if there is no specific law protect-
ing the privacy of information shared in mediation. Courts generally honor confidentiality

Mediation 2 43
243
agreements; however, privilege is not guaranteed unless there is a specific law providing
privilege to the mediation process.
Mediators may also help parties distinguish the privacy of the mediation process versus
privacy of the outcomes. The parties may agree to confidentiality of the mediation process
to foster a safe, confidential place to negotiate. Thus, international diplomacy, healthcare
debates, collective bargaining, and family mediation are typically presented as confidential
processes. When agreements are reached, however, there may be a need for others to know
the results of mediation. In divorce mediation, the results may need to be communicated
to children and grandparents. In international diplomacy, the results may need to be com-
municated to the public; further, the participants may need to explain how they reached
particular decisions.
Although many mediators view confidentiality as vital to an effective mediation pro-
cess, there are many exceptions to both confidentiality and privilege. Information about
child abuse, elder abuse, or abuse of people with disabilities, for instance, may be subject
to mandatory reporting requirements. Furthermore, confidentiality and privilege do not
apply for court or disciplinary proceedings concerning allegations against a mediator for
professional misconduct or malpractice. Some laws also allow courts to compel mediators
or parties to testify in matters related to criminal acts (e.g., if one client threatened to kill the
other) or matters of national security (e.g., under the Patriot Act).
Some mediators offer clients a mediation process that is neither confidential nor
privileged. Mediation should be open to the public, for instance, if it pertains to a policy
issue for a governmental organization that is subject to laws requiring all meetings to be
open. Some mediators offer “open,” “recommending,” or “nonconfidential” mediation
to parties as part of hybrid mediation processes such as mediation- arbitration (med-
arb) or mediation- evaluation (Pickar & Kahn, 2011; Ricci, 2004). Initially, the mediator
tries to help the parties negotiate their own agreement. If the parties cannot reach agree-
ment on their own, then the mediator changes hats (or roles) and becomes an arbitrator
or evaluator. A med- arbiter uses information from the mediation stage to help inform
the arbitrated decision. A med- evaluator4 uses information from the mediation to help
inform his or her evaluation and recommendations, which the med- evaluator may pro-
vide to court. W hereas some mediators believe that hybrid roles are effective and ethi-
cal processes, others question whether these hybrid roles actually defeat the purpose
of mediation (Barsky, 2013a; Shienvold, 2004). In terms of confidentiality, mediators
must consider whether parties will be able to openly discuss all their concerns and all
the possible solutions, if they know that their communications may be disclosed in
court or other forums.
SFM fits best with hybrid models such as med- arb, in which information from the
mediation can be used in later processes. During the mediation stage, parties are not
expected to discuss relational or emotional issues. Accordingly, they will not be as con-
cerned about information from mediation being used at a follow- up hearing. Their main
goal is to settle the dispute, whether in mediation or in the follow- up process. The other
approaches to mediation invite parties to disclose various levels of personal information
related to emotions and relationships. Offering confidentiality and privilege in these pro-
cesses is important if the mediator wants to encourage parties to trust the process and
open up. Even when mediators offer confidentiality, however, absolute confidentiality can-
not be assured.
4 Often, the professional is simply referred to as an evaluator, rather than a med- evaluator, even though the
professional’s role includes both mediative and evaluative functions (Barsky, 2013b).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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3. Nonadversarial
Mediation is frequently viewed as an alternative to adversarial processes such as court, arbi-
tration (Ferguson, 2013), and adjudicative grievance procedures. This perspective suggests
the mediator’s role is to encourage the parties to cooperate rather than compete. If the par-
ties adopt power or rights- based approaches, the mediator may have difficulty moving them
away from adversarial positions and tactics. However, the mediator may be able to help
them work toward settlement despite their adversarial relations. SFM would view settle-
ment as success. The other models, however, suggest that the mediators should also resolve
underlying issues or foster more positive relations between the parties.
Historically, some cultures viewed reconciliation (restoring relationships) as the ultimate
goal of mediative processes (Bossy, 2003). The predominant view in professional literature
suggests that success in mediation does not require reconciliation, although it might include
fostering better relations. Paradoxically, mediation and reconciliation sometimes work in
opposite directions. For instance, when a separated couple is involved in mediation over child
custody and visitation issues, the purpose of mediation is to come to an amicable resolution
whereby parents remain separated from each other. In contrast, reconciliation counseling is
designed to help bring parents back together as a couple and as a reunited family. Some writers
suggest that mediation is better suited to conflicts requiring some type of ongoing relation-
ship, rather than when there is no prospect of a future relationship (Ojelabi, Fisher, Cleak,
Vernon, & Balvin, 2011). Mediation can be used to help the parties renegotiate their roles into
a different form of relationship instead of reconciling into the pre- existing one (Emery, 2011).
Consider this: Is it necessary for mediators to help parties move toward more amicable
relations, or is settlement of the immediate issues in dispute sufficient? Will settlements
endure if the parties have not resolved their relational problems? Is reconciliation the ulti-
mate goal of mediation?
4. Neutral Third Party
Most mediation literature and codes of ethics suggest that mediators must be independent,
neutral, or impartial. However, the authorities differ as to which terms to use and what each
of these terms mean (Mayer, 2015; Mayer et al., 2012).
Independence suggests that the mediator has no economic, emotional, psychological, or
authoritative affiliations with any party involved in the conflict. If the mediator is related to one
party— for example, as a therapist, parent, lawyer, or teacher— then the other party might
have concerns that the mediator will be biased. Thus, many professional codes of ethics
suggest that professionals (including mediators) should avoid dual relationships with their
clients. If the mediator discloses any affiliations to the parties, the parties have the option of
accepting or rejecting the mediator. Independence also provides the mediator with profes-
sional distance, the ability to look at the situation from an objective perspective.
Some authors equate neutrality with independence, but others go further. To be neutral,
the mediator should have no pre- existing biases, no decision- making authority, and no stake in a
specific type of outcome. In addition, the mediator should not demonstrate bias toward one side or
the other (Fehrenbach & Hubbard, 2014). Each of these aspects of neutrality poses certain
challenges.
First, all mediators have pre- existing biases (C. Beck, Sales, & Emery, 2004). At the very
least, aren’t all mediators interested in helping the parties resolve their conflicts— amicably,
constructively, efficiently, fairly, or effectively? Don’t all people carry certain values and
biases? One response to these concerns suggests that mediators should be mindful of their
biases (through reflection or other self- awareness processes described in Chapter 1). In
some situations, mediators can try to suspend their biases so they do not impose them on
the parties. For example, a mediator who believes that religion is important must recognize

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that clients have a right to make their own decisions about religion. Mediators should be
clear and transparent about any biases or predispositions that they intend to bring into the
mediation (Mayer et al., 2012). During the initial phases of mediation, for instance, media-
tors describe their mediation approach and strategies. If the mediator values promotion of
amicable relations, the parties will know this from the start and will have an opportunity to
accept or reject services from this mediator.
In terms of no decision- making authority, most mediators would agree that they cannot
mediate if they also have the ability to impose decisions on the parties. Mediation is designed
to promote self- determination, not tell the parties what to do (American Arbitration
Association et al., 2005, Standard I; Mayer et al., 2012). However, some CR practitioners
use med- arb, a hybrid process in which they begin the process as mediators. If the parties do
not come to a resolution in mediation, then the CR practitioner becomes an arbitrator and
makes a decision for the parties (Barsky, 2013b). Similarly, a judge in a pretrial conference
uses mediative strategies to try to bring the parties to a settlement. If the parties do not settle,
then the judge hears the case and makes a decision for the parties. In most jurisdictions, the
judge who conducts the pretrial does not hear the case if it goes to trial. If conflicting parties
know that their mediator may become their judge or arbitrator, they may act differently in
the mediation process. During mediation, a mediator wants the parties to feel free to disclose
information, even if it might be embarrassing. If the information may be used in arbitration
or court, the parties may be less willing to divulge information.
Although all four contemporary approaches to mediation say that the parties have a right
to make their own decisions, some approaches allow for greater mediator influence than oth-
ers. Settlement- focused mediators are most likely to use directive techniques in mediation in
order to expedite a settlement (e.g., making decisions about process issues such as sequencing,
staging, ground rules, and timing, rather than allowing the parties to negotiate these decisions).
Interest- based and therapeutic mediators are less directive but still adopt strategies where the
mediator encourages amicable solutions. Transformative mediators are the least directive
mediators. They focus on facilitating communication and understanding rather than facili-
tating settlements. Still, they cannot deny that they have an influence on how agreements are
reached. Some mediation theorists suggest that as soon as mediators start to evaluate the merits
of the case or use their own knowledge to influence the outcome, they are not acting in a strictly
neutral manner (Fehrenbach & Hubbard, 2014). Research suggests that parties involved in
high- conflict situations may be more amenable to more directive mediators (Lewicki et al.,
2010). In situations with lower levels of hostility, the parties are better able to negotiate on their
own. They may be less amenable to pressure or overt direction from the mediator.
The third aspect of neutrality, having no stake in a particular outcome, suggests that the
parties are free to make their own decisions about how to resolve their conflicts. Whereas
traditional mediators such as clergy and elders were able to influence people to conform to
religious or community norms, most contemporary, professional mediators do not ascribe
to the view that they are entitled to play the role of social conscience, law enforcement, or
other agent of social control (Mayer et al., 2012; Moore, 2014).5 Still, mediators are subject
to constraints and incentives created by the systems they work for. For example, if success
5 Whereas traditional mediators were often chosen because of their position and what they represented in the
community, professional mediators are usually chosen because they are viewed to be neutral. They empha-
size the rights of the parties to resolve disputes according to their own values and interests. Still, some
mediators are chosen not because of professional mediation training but because of knowledge, status, and
experience in a particular field relevant to the type of conflict; lawyers for legal matters; accountants for
financial issues; helping professionals for psychosocial, family, and community conflicts; business managers
for organizational matters; and former heads of state for international conflicts are some examples.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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in mediation is measured by the percent of cases that settle, then mediators may be enticed
to pressure parties into settling. If a mediator receives funding from a body with a particular
political viewpoint, then the mediator may feel pressure to guide the parties to solutions
that fit this view.
The final aspect of neutrality is not siding with one party or another. This ensures that
the process is fair and perceived by the parties to be fair. In some cases, this means treating
everyone even- handedly: giving both parties equal time to speak, ensuring that both parties
feel heard, creating symmetry in enforcing ground rules, and providing the same negotia-
tion support to both parties (Fehrenbach & Hubbard, 2014). One of the biggest controver-
sies in mediation concerns how to handle an imbalance of bargaining power between the
parties (described later). If the mediator intervenes to redistribute bargaining power, then
is the mediator being neutral? If the mediator does not intervene, then is the process fair?
Consider the place of neutrality in bioethics mediation. In bioethics mediation, the
mediator helps healthcare providers work through ethical conflicts with patients and fam-
ily members concerning the care of the patient (e.g., the family of an unconscious patient
wants to keep the patient in intensive care, but the doctor views this as futile because the
patient is going to die and the hospital can use the intensive care bed for another person
who has a greater chance of living). Bioethics mediators are usually employed by the hospi-
tal. Although the patient and family might have initial concerns that the hospital’s mediator
will side with the healthcare staff, there are benefits to having an in- house mediator. First,
an in- house mediator is available to handle urgent situations. There may not be time to hire
an outsider. Second, an in- house mediator has specialized knowledge of medical ethics,
laws and policies governing what can and cannot be done, and mediation processes that fit
best with this type of situation (Dubler & Liebman, 2004). In order for the family to trust
the mediator, the mediator needs to establish neutrality by the way he or she responds to
the parties. Also, the hospital must be supportive of the mediator being neutral rather than
supportive of staff positions and preferences.
Some writers suggest that mediators need to be impartial rather than neutral
(Fehrenbach & Hubbard, 2014). Although some mediators equate neutrality and impar-
tiality (Mayer, 2015), others suggest that impartiality specifically refers to absence of bias,
prejudice, or favoritism to either party (American Arbitration Association et al., 2005,
Standard II). The mediator should not side with one party or the other. Furthermore, the
mediator should not be seen to side for one party or the other. Mediators’ backgrounds
and prior affiliations are not problematic as long as the mediators can demonstrate by
word and by deed that they are treating the parties fairly (Lewicki et al., 2010). Although
this concept deals with some of the issues around neutrality, the question still arises about
what it means to be impartial when there is an imbalance of power between the parties.
Rifkin, Millen, and Cobb (1991) suggest that a mediator should demonstrate “equidis-
tance” as well as impartiality. Equidistance refers to the ability of the mediator to assist all
parties express their “sides.” Equidistance requires even- handedness. It allows the mediator
to align temporarily with each party, so long as the mediator eventually assists all parties
equally (C. Beck et al., 2004; Mayer, 2015).6
Must a mediator be independent, neutral, equidistant, or impartial? Why are these
qualities important? Are they values that are inherent to all forms mediation, and within
6 To maintain equidistance, mediators should use mindfulness to ensure “equipoise.” Equipoise refers to assess-
ing information, thoughts, and emotions in a deliberate manner, rather than being affected by automatic, habit-
uated reactions (Coates, 2015). In other words, self- awareness is key to avoiding biased assessments and
responses.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Mediation 2 47
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all cultures? Are they simply means to an end? Can mediation be effective if mediators are
not independent, neutral, equidistant, or impartial? Does the legitimacy and effectiveness
depend on whether a mediator is neutral or whether the mediator is creative, compassion-
ate, smart, trustworthy, and fair (Mayer et al., 2012)?
5. Equal Bargaining Power
Power imbalances occur when one party has more information, better negotiation skills,
greater resources, or more strength than the other party. Power balancing refers to mediation
strategies aimed at rectifying power imbalances to promote productive and effective negotiations
(Lang, 2004). If the mediation process is patently unfair, at least one party is likely to be dis-
satisfied with the process (Howieson, 2011). Further, the outcome is also likely to be unfair,
leading to instability of the agreements (Mayer et al., 2012). Power- balancing strategies
include ensuring that the disadvantaged party has access to information (del Campo, Vilà,
Martí, & Vinuesa, 2011), time to reflect before making decisions, opportunities to enhance
negotiation skills, or support from others to counter the greater strength or resources of the
advantaged party. Mediators may also meet individually with the disadvantaged party to
help that party articulate concerns and feel more secure in the process (Patterson, 2009).
The issue of bargaining power raises important concerns for both proponents and crit-
ics of mediation. Basically, four views exist: (a) Mediators should only mediate if there is
relatively equal bargaining power between the parties; (b) mediators should only mediate if
there is equal bargaining power between the parties or if they can balance bargaining power
through their interventions; (c) mediators should mediate regardless of bargaining power
between the parties and have no obligation to rebalance power when an imbalance exists;
and (d) mediators should never mediate, because they cannot properly assess for power
imbalances and because they cannot properly redress power imbalances when they do
exist. My own view is, “It depends.” Therapeutic mediators7 are most likely to view power
balancing as an integral role of the mediation process (Irving & Benjamin, 2002/ 2012).
Therapeutic mediators often deal with family disputes rather than commercial or public
policy disputes. In family disputes, therapeutic mediators are aware that power imbalances
frequently exist between spouses, as well as between parents and children. Balancing power
is necessary in order to protect spouses, children, or elders from coercion, exploitation, and
abuse. Accordingly, family mediators must be knowledgeable about how to deal with issues
related to safety and power imbalance (A. Crampton, 2013). Challenging power imbal-
ances may also be necessary in conflicts involving social injustices (McCormick, 1997),
such as racism, homophobia, and discrimination against people with disabilities.
Mediators who do not view power balancing as legitimate often specialize in mediat-
ing commercial disputes. Although power imbalances exist in commercial relationships,
businesses operate in a capitalistic, competitive environment. If the parties do not use a
mediator, they would still negotiate under the dynamics of a power imbalance. Many com-
mercial mediators believe that they should not interfere with the parties’ relative strength
in negotiating with one another. According to this view, power balancing runs contrary
to neutrality and impartiality (Mayer et al., 2012). On the one hand, why would a more
powerful party submit to mediation if she knows the mediator will power balance in favor
of the weaker party? On the other hand, how is it fair to a party who is less articulate, less
knowledgeable, or less assertive, for a mediator to say, “It’s not my responsibility to help you
with such issues.”
7 Particularly feminist- informed therapeutic mediators.

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Transformative mediators also view power balancing as inappropriate (Bush & Folger,
2012). They emphasize the rights of the parties to make self- determined choices. This
includes the right of the parties to choose whether to participate in mediation. If a weaker
party believes that mediation will not be fair, then that party can refuse to participate in
mediation. Transformative mediators do support the use of empowerment interventions,
but differentiate these from power rebalancing. The purpose of power balancing is to redis-
tribute power to the weaker party in order to ensure that the mediation process is fair. The
purpose of empowerment is to provide both parties with skills and support to enable them
to make self- determined, conscious choices (Bush & Folger, 2005). This still raises the ethi-
cal dilemma of the mediator’s role when self- determination, fairness, and impartiality con-
flict (Menkel- Meadow & Wheeler, 2004).
Settlement- focused and interest- based models of mediation do not specifically indicate
how mediators should deal with power imbalances. It may depend on the context of media-
tion or the values of the particular mediator.
Some feminist critiques suggest that family mediation between men and women is
inherently unfair given the systemic disadvantages of women in society. Some are con-
cerned that mediators are incapable of assessing for power imbalances, particularly woman
abuse. Others believe that mediators are not able to power balance and assure the safety of
women, even if mediators were able to assess for such problems (Pearson, 1997; Semple,
2012). During the 1990s, feminist- informed models began to develop in order to respond
to these concerns (Irving & Benjamin, 1995). Feminist- informed mediators conduct more
thorough assessments for power imbalances and abuse. They establish firm ground rules to
minimize the risk of exploitation or abuse. They are also very interventionist when abuse or
power imbalance issues do arise (Flynn, 2005; Milne, 2004).
6. Mutually Satisfying Agreement
Although most definitions of mediation suggest that one of the mediator’s functions is to
help the parties reach a mutually satisfying agreement, this description fits best with the
settlement- focused and interest- based paradigms of mediation. On the surface, this role
seems obvious. Why would parties go to a mediator if not to get help to settle their dispute?
If a mediator adopts a transformative approach, however, the role is to facilitate empower-
ment and recognition (Bush & Folger, 2012). Likewise, if a mediator adopts a therapeu-
tic approach, then reaching a mutually satisfying agreement is not the only role (Irving &
Benjamin, 2002/ 2012). Therapeutic mediators foster more positive communication and
relationships between the parties, as well as help them resolve underlying issues.
Although many mediators view agreement as a central goal for mediation, media-
tors must ask whether any agreement is sufficient. Must the agreement be fair? Durable?
Reasonable? Legal? If the parties are satisfied with an agreement, then why should a media-
tor question their decision?
* * * * *
In summary, various mediation approaches lend themselves to different ways of handling
cases. Further research is needed to answer questions about which approaches are most
effective and for what purposes (C. Beck et al., 2004). Mediators tend to have different ori-
entations depending on their professional backgrounds (Baitar, Buysse, Brondeel, De Mol,
& Rober, 2013). Mediators with mental health backgrounds tend to focus on family systems,
affective issues, needs, and subjective criteria for fairness; mediators with legal backgrounds
tend to emphasize the contract, cognitive negotiation, rights, and objective criteria for fair-
ness (Hermann, Hollett, Eaker, & Gale, 2003). Professional background may affect one’s
approach to mediation. However, the field of mediation has encouraged crosspollination

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between professions, in which people of different professional backgrounds are learning
mediation from each other and blurring boundaries traditionally associated with their pro-
fessional backgrounds (Baitar et al., 2013).
Individual mediators and programs must determine which approaches to adopt. As you
work through this chapter, consider how you will determine your model of practice. Will
it depend on your values, the agency context, the clients’ request, or which approach has
proven clinically to be most effective?
CONTEXTS FOR MEDIATION
One area of talent that helping professionals bring to mediation is their ability to deal with
process— for instance, facilitation skills, active listening, and helping people express feel-
ings. Helping professionals also have content knowledge and expertise that are advanta-
geous for mediating in specific contexts: divorce and separation, intergenerational family
disputes, child abuse and neglect, community conflict, teacher– student conflict, alterca-
tions in healthcare and residential treatment settings, social policy development, workplace
harassment, cross- cultural disputes, and criminal justice (Conflict Resolution Education
Connection, n.d.). Some helping professionals focus on mediation between individuals.
Others mediate primarily between groups and larger social systems (Kirst- Ashman & Hull,
2015). The following two sections illustrate informal and formal roles for helping profes-
sionals as mediators.
1. Emergent Mediation
Emergent mediation refers to an informal process of mediation that develops (or emerges)
from other forms of relationships (Morasso, 2011). In emergent mediation, helping pro-
fessionals retain their primary professional identification (e.g., as a psychologist, teacher,
social worker, therapist, nurse, or counselor). They do not become mediators as such, and
they do not even identify themselves as mediators. However, they draw from a broad range
of mediative techniques without becoming a formal mediator. Consider the following
examples:
• Two professional colleagues are debating the ethics of a particular intervention. You offer
to help them work through the problem. They see you as a professional peer rather than
a mediator, though you are using a mediative approach.
• You are a community development worker. Your community is split about its goals. You
use mediative techniques to help them build consensus.
• You are a physician who has an elder patient with advanced dementia and is seriously ill.
During the course of treatment, family members disagree about the use of a feeding tube.
As a physician, you have a professional opinion on this matter, but you also want to help
family members reach agreement about how to proceed. You decide to assume a role as
informal mediator (Back & Arnold, 2005).
• You are working with a family in which the teenager has rejected the parents’ religion.
In your role as therapist, you employ mediative strategies to help them reach a mutual
understanding.
Professional codes of ethics for mediators (including rules related to competence, confi-
dentiality, dual roles, and informed consent) do not specifically apply to emergent media-
tors. When acting as an emergent mediator, the professional is guided by the codes of ethics
of his or her primary role (e.g., nurse, psychologist, teacher, parole officer).

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2. Contractual Mediation
Unlike an emergent mediator, a contractual mediator is hired specifically to mediate (Morasso,
2011). The process typically begins with an explicit Agreement to Mediate. The Agreement to
Mediate, sometimes called a retainer, delineates the roles of the parties, the role of the media-
tor, and the parameters of the mediation process. Contractual mediators typically subscribe to
a code of ethics for mediators. When a helping professional assumes the role of a contractual
mediator, for example, it is generally inappropriate to carry on a dual role. Accordingly, it is
important to consider whether a conflict of interest exists between your usual helping role and
your potential role as a mediator. The following cases illustrate possible conflicts of interest:
• Priscilla is a psychologist who has conducted a battery of psychological tests with a client
named Clint. Clint is going through a divorce and asks Priscilla to mediate. If Priscilla
accepts the mediation role, what happens to the information from the psychological
tests? Can Priscilla use this information in mediation? Does Clint’s former spouse have
access to this information?
• Charles and Chester are child protection workers. Chester is having a dispute with a
family that is upset that Chester has put their children into foster care. If Charles offers
to mediate this dispute, what concerns might the family have regarding neutrality and
fairness?
• Alex is an antipoverty advocate. A government official asks Alex to mediate a dispute
between two agencies that serve unemployed individuals. If Alex accepts this role, must
he relinquish his advocacy role?
• Stephanie is a student who has been suspended from school. Her teacher, Tony, is also
the chief mediator in the school’s CR program. If Tony were involved in the original sus-
pension, how could he act as a neutral or impartial mediator in Stephanie’s case?
Dual relationships and conflicts of interest are particularly problematic in small, isolated
communities (Gonyea, Wright, & Earl- Kulkosky, 2014). In small communities, it is virtu-
ally impossible for mediators to have no prior relationships with the parties. While bringing
a mediator from outside the community may be the answer, this is not always practical or
desirable. Aside from the costs of bringing in a mediator, local mediators have the advantage
of understanding the local culture and context of the dispute.
While some helping professionals work exclusively as mediators, most mediate as just
one part of their practice. Social agencies and court- affiliated services are able to hire full-
time mediators if they have sufficient referrals. Mediators in private practice, however, need
to build referral sources over time to be able to generate sufficient cases to support a full- time
practice. In most jurisdictions, mediators cannot expect to simply hang up a shingle and
wait for cases to show up at the door (Raines, Kumar Pokhrel, & Poitras, 2013). Mediators
need to become known in their communities, educating potential referral sources about
mediation, generally, and their own services, in particular.
MEDIATION BET WEEN INDIVIDUAL S: A CASE ILLUSTRATION
To demonstrate mediation in practice, the following case provides a comparative analysis,
incorporating skills and strategies from SFM and IBM. Both approaches follow the same
general phases; however, settlement- focused mediators tend to be more directive and task-
oriented, whereas interest- based mediators tend to be more facilitative and process- ori-
ented. Arguably, these two approaches are not categorically different; mediators may use
various combinations of facilitative and directive skills. By providing a case that compares

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facilitative and directive approaches, you can see how different mediators approach similar
issues. When you are mediating a particular conflict, you will want to assess the needs of the
clients and make deliberate decisions about how facilitative or how directive to be.
The basic mediation framework consists of seven phases: preparation, orientation to
mediation, storytelling and issue definition, exploring interests and needs, negotiation and
problem solving, finalizing an agreement, and follow- up. Consider the following situation.
Elvis and Englebert are two employees at Conflictia Software Enterprises (C- Soft).
Elvis is 28 years old and has been with the company for 5 years. He is considered a senior
employee in this young, progressive company. Englebert is 22, fresh out of college. In
the 2 months Englebert has been working for C- Soft, Elvis has subjected Englebert to
a series of hazing rituals— shaving his head, making offensive messages pop up on his
computer, and posting embarrassing photos of him on Facebook.
The next seven sections demonstrate how each phase of mediation could be implemented
by settlement- focused and interest- based mediators. Toward the end of this chapter are
seven role- play exercises, each focusing on one of the seven phases. Each role- play includes
an inventory of skills and activities to be considered at each phase of mediation.
1. Preparation
People can find their way into mediation through various avenues: self- referral, referral by third
parties, or imposition by judges or other third parties (Charkoudian & Bilick, 2015).8 Englebert
might request mediation, Englebert’s friend might suggest mediation and contact a media-
tor, or Englebert and Elvis’s supervisor might demand that they go to mediation. The super-
visor might decide to mediate the conflict personally, as an emergent mediator. One role of
a supervisor is to deal with relations between employees. Emergent mediation is less formal
than contractual mediation. The supervisor would abbreviate, omit, and combine many of
the skills and activities of mediation. For example, there would be no formal Agreement to
Mediate. Introductions could be relatively brief because the parties already have a relation-
ship with their supervisor.
If the parties go to a contractual mediator, this could be someone who works for the
agency (e.g., in their human resources department9 or employee assistance program10).
Alternatively, the mediator could be from outside the agency (e.g., a private mediator, a
mediator who works for a human rights tribunal, or a mediator who works for a service
that receives cases diverted from court).
Assume that Englebert goes to his supervisor, Sheryl, to file a formal harassment com-
plaint about Elvis. Sheryl suggests that they use the services of a human resources counselor
to mediate their dispute. Neither Elvis nor Englebert knows anything about mediation.
Englebert says, “You can’t force me to go to meditation … medication … whatever.” Sheryl
suggests that they each meet individually with the mediator, so they can make informed
choices. Contractual mediation does not formally begin until the parties have signed or orally
8 Third- party referrals include referrals by family members, neighbors, employers, schools, police, government
agencies, private companies, social agencies, probation, religious institutions, and housing associations.
9 The human resources department is sometimes called a personnel department.
10 Employee assistance programs traditionally provide counseling, vocational, and therapeutic services.
Some employers also offer mediation services as part of their employee assistance programs, antiharass-
ment processes, or legal assistance programs.

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committed to an Agreement to Mediate. Sheryl believes that mediation should be voluntary,
so she says there will be no negative consequences from C- Soft if they decide not to mediate.
The mediator, Medina, receives the mediation referral from Sheryl. The mediator accepts
basic information about the conflict from the referral source, including who is involved, how can they
be contacted, and whether the case includes any special concerns, such as a risk of violence. Medina
does not want to gather too much information at this phase so the parties can present the
information themselves. If Medina accepts more information from the referral source, she
risks having the parties believe that she has pre- existing biases when they enter the process.
To prepare for mediation, the mediator contacts the parties, conducts preliminary assess-
ments to ensure that the situation is appropriate for mediation, arranges for interaction between
the parties, and strategizes how to begin the mediation process. Because Medina knows this
case includes a claim about workplace harassment, she inquires whether there are safety
issues: (a) Is the alleged harassment ongoing? (b) Are the parties continuing to go to work
during mediation? and (c) Has either party’s employment been suspended? Sheryl says
both parties are continuing to work, but they have been placed in separate departments.
She does not believe there are safety issues. Medina asks whether either party has an uncon-
trolled substance abuse problem, mental illness, or other concerns that might hinder their
ability to mediate (Barsky, 2013b). Sheryl says she does not know of problems in these areas.
Medina contacts each party by telephone to arrange for the first mediation session.
Settlement- focused mediators generally use this phase to schedule meetings, without fur-
ther assessments. Interest- based mediators might assess the parties’ willingness and ability
to negotiate more thoroughly. Elvis indicates reluctance to mediate. He does not think he
did anything wrong, so why should he be punished? Medina assures him that she is not there
to judge or punish him. She has no power to judge or sanction either party. Englebert hints
that he feels intimidated by Elvis but says he does not fear face- to- face contact with him.
When inviting prospective clients to participate in mediation, the language used by
the mediator can affect whether they agree to mediate. Mediators may use noncoercive
persuasion, encouraging people to participate without pressuring or manipulating them.
If Medina were to ask, “Do you see any benefit in mediating?” Elvis might be inclined to
say, “No,” and then elaborate on his reasons that mediation would not be helpful. Instead,
Medina explains mediation and then inquires, “Would you be willing to try mediation?”
Most people have a tendency to agree. They want others to see them as reasonable and will-
ing to try something that might be helpful (Sikveland & Stokoe, 2016).
To ensure that both parties can negotiate fairly, Medina meets with both parties indi-
vidually before bringing them together. If Medina took a settlement- focused approach, she
might prefer to meet with both parties together right from the start. However, interest-
based mediators are more likely to meet individually first if they are concerned about safety
or power imbalance issues.
Medina considers possible legal issues that might arise in this case. Neither party has a
lawyer. However, if harassment were proven, C- Soft could fire or discipline Elvis; Englebert
could also sue Elvis for damages. Medina informs the parties about the benefits of obtain-
ing independent legal advice and ensures that they have access to legal advice should they
be concerned about their rights or other legal issues. Both parties decline legal advice at
this phase. Both interest- based and settlement- focused mediators should consider whether
legal advice is important. The extent to which they encourage or direct parties to obtain
legal advice depends more on the nature of the legal issues than their approach to media-
tion. Still, settlement- focused mediators may be more likely to encourage parties to bring
attorneys to mediation because they view the dispute as based in rights. Interest- based
mediators sometimes prefer to meet without attorneys present to encourage collaboration
and to foster communication between the parties rather than through their attorneys.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Mediation 253
253
The mediator considers who should be included in the mediation process: Englebert, Elvis,
Sheryl, witnesses, people who have participated in other hazing rituals, and support per-
sons for both parties. She decides to begin with Elvis and Englebert, the two people directly
involved in the conflict. Initially, most mediators tend to limit the number of people to keep
the process simple. Bringing in additional parties as the process progresses is generally eas-
ier than asking parties to leave mediation. Accordingly, mediators can limit the number of
people involved at the beginning and bring in others on an as- needed basis— for example,
to balance power, to offer suggestions, or to help implement decisions made in mediation.
If attorneys or interpreters are needed, they should be included from the start.
Medina arranges appointments with each party in her office. The office is arranged in a
manner that is conducive to mediation: private, quiet, impartial, and comfortable. The room has
a round table, enabling parties to sit around it and take notes. The light and color schemes
are soft. Ventilation is good. The office is housed in the same building where Elvis and
Englebert work. This presents two potential problems. First, others in C- Soft can see when
they come to mediation, partially infringing Elvis and Englebert’s right to confidentiality.
Second, the office is affiliated with C- Soft, giving the impression that Medina might use
the authority of the employer to influence the outcome of mediation (e.g., pressuring the
parties to agree to terms that reflect the norms and policies of C- Soft). Settlement- focused
mediators may be less concerned about this type of issue than interest- based mediators.
However, Medina can raise this issue to see whether the parties are really concerned about
Medina’s affiliation with C- Soft.
2. Orientation to Mediation
The orientation phase begins with the first meeting with the parties, either jointly or individu-
ally, and ends with the parties agreeing to mediate. The primary purposes of this phase are to
help the parties understand mediation and to obtain their commitment to a particular process.
The mediator tries to establish norms that will ensure that the parties participate constructively.
Mediators encourage the parties to trust them by demonstrating warmth, unconditional
positive regard, honesty, concern, and empathy with each party, as well as neutrality,
knowledge, and competence as a mediator (S. Goldberg & Shaw, 2007; Moore, 2014;
Poitras, 2009). The orientation phase of mediation is particularly important as mediators
can use their explanations of mediation to establish their credibility and compassion as
mediators.
As Medina goes to the reception area, she conducts a preliminary assessment based
on a visual scan. She notes that Englebert and Elvis are sitting at opposite ends of the
reception area. They are giving each other no eye contact. They appear uncomfortable
simply being in the same room as each other. Englebert is nervously tapping his hand
on his leg. Elvis is humming to himself, perhaps trying to imagine he is somewhere else.
Elvis’s clothes are immaculate, whereas Englebert looks a bit disheveled. Medina wonders
whether this could indicate Elvis is more organized and perhaps more powerful in nego-
tiating. She is mindful that these assessments are tentative and that she must be careful to
avoid stereotypes.
Medina welcomes Elvis and Englebert by name, shakes their hands, and invites them
into her office. As they walk back to her office, she reviews key points that she wants to cover
in the opening of her session. She notes that it is important to model effective communica-
tion skills and encourage the parties to follow suit. She also wants to build trust by dem-
onstrating impartiality. For settlement- focused mediators, the orientation phase is relatively
short. The mediator provides an introductory statement that explains the goals of mediation,
the role of the mediator, confidentiality, what happens if the parties come to an agreement,

254 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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and what happens if they do not.11 Each mediator personalizes the opening statement, so
that it feels comfortable to the mediator and so that it is tailored to the needs of the parties.
As a settlement- focused mediator, Medina might begin with the following statement:
My name is Medina. Your supervisor has asked me to help you settle a conflict that has arisen
in recent weeks. Sheryl has not given me the details of your concerns except to say that both of
you are considering whether you can work things out through mediation. At this point, all you
have committed to is today’s session. If both of you agree to mediate, I will ask you to sign the
Agreement to Mediate. [Medina provides copies to the parties.]
As a mediator, my job is to help you discuss your concerns and work toward a solution that
both of you can support. I am not a judge, and I am not going to make decisions for you. I may be
able to make suggestions, but it is up to the two of you to decide what you want to do. I will do my
best to remain impartial. In other words, I will not take sides with either one of you. If you have
concerns about my ability to be impartial, please feel free to raise these so we can discuss them.
Mediation does not work unless you believe that I am impartial. [Medina pauses to see whether
the parties have any questions and to check what their body language may be indicating.]
If you are able to reach agreement, then we will decide how to ensure that both of you are
able to fulfill your commitments. This may mean having lawyers draft a legally binding agree-
ment. Most often, these types of disputes can be worked out informally. We simply write a letter
of understanding. This letter states your expectations, but it is not a legal document. I understand
that you do not want legal advice at this time, but we will discuss it again if any legal issues arise.
If you are not able to reach an agreement, then we can discuss other alternatives. I understand
there is a possibility that this conflict could go to the Harassment Committee at C- Soft. However,
the Agreement to Mediate that I will ask you to sign says that mediation is confidential and privi-
leged. I will not share any information with the Harassment Committee, your supervisor, or anyone
else at C- Soft. At the end of mediation, you may agree to share certain information to implement
the decision. C- Soft has assured me that it will honor your right to confidentiality in mediation. The
main exception to confidentiality arises if someone may be at risk of physical harm. I have a profes-
sional obligation to take reasonable steps to help prevent the harm from occurring. Even if this comes
up, I will try to obtain your consent to disclose information before taking further steps.
You probably have some questions about mediation and some of the things I have just said . . .
Other issues that can be included are the credentials of the mediator, the length of time the parties
can expect to spend in mediation, and ground rules for the process (e.g., behavioral guidelines
such as one person speaks at a time, everyone will use respectful language, no smoking dur-
ing mediation sessions, and everyone will turn off cell phones). Some mediators are direc-
tive about the ground rules, indicating that the mediator is in control of the process. Other
mediators have the parties suggest ground rules, supporting the clients’ ownership of the
process. If there is a high level of conflict at the outset, the parties may be unable to negoti-
ate ground rules. Accordingly, the mediator may be wise to provide at least basic ground
rules at this phase. Some mediators discuss ground virtues rather than ground rules. Ground
virtues identify aspirational qualities or ways of being during the mediation process, for
instance, the parties may agree to be respectful, honest, open, patient, and collaborative. To
ensure that these commitments are not mere platitudes, the mediator could ask the parties
what it means to be respectful and so on. In this manner, the mediator can ensure that both
parties truly understand and are committed to implementing the ground virtues. In one
mediation, I had one client define respect as “not spitting on the other person,” so both par-
ties wisely agreed not to spit on each other.
11 In some jurisdictions, the laws dictate specifically what court- appointed mediators must include in their
opening statements.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Mediation 255
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Mediators select language that is neutral, positive, and future focused. For example, the
introductory statement speaks of “concerns” rather than problems or disputes. The focus is
on resolving concerns and coming to agreement, rather than finding out what has happened
or determining who is to blame. One of the key goals in the initial phases of mediation is
to facilitate positive conditions for problem solving: a spirit of collaboration, a sense of
emotional and physical security, and assurance that everyone will be treated with respect,
regardless of their culture, history, or roles in the conflict. As the Chapter 1 discussion on
mindfulness reminds us, people are better able to problem- solve when they are put at ease.
The introductory statement can be broken down into components to allow the parties
to ask questions as the mediator explains various aspects of mediation. Each introductory
statement needs to be tailored to the particular situation, including the nature of the dis-
pute, the agency’s policies, the clients’ level of language, and the mediator’s model of media-
tion. If either party is not fluent in the same language as the mediator, an interpreter should
be used from the outset. The interpreter should be independent. Having one party interpret
for the other creates a conflict of interest.
The forgoing introductory statement was based on a settlement- focused approach. The
following example illustrates verbiage that fits with IBM, focusing on collaboration, com-
mon ground, and resolving underlying interests:
Mediation is a nonadversarial process. In other words, I will encourage you to problem solve
together. I will begin by asking each of you, “What are your primary concerns?” As you explain
where you are coming from, I’ll make sure that we are all on the same page by asking clarifying
questions and summarizing your concerns. We will then take this information to develop a list
of issues to work on. I will help you prioritize which issues to work on first. For each issue that
we address, I’ll help you identify common interests. These are concerns or hopes that both of
you share. We will then work on how to resolve these concerns. What types of solutions can we
find where both of you are satisfied with the results? There are no winners and losers. Both of
you need to be satisfied in order for us to come to an agreement.
As noted earlier, interest- based mediators are less directive than settlement- focused medi-
ators. Interest- based mediators emphasize the parties’ ownership of the dispute and any
agreements they conclude. Interest- based mediators often highlight the advantages of
mediation over adjudication:
Mediation is less formal than the hearings conducted by the Harassment Committee.
Mediation allows you to come to your own decisions rather than have someone impose them
on you. You are the best judges of how to resolve your concerns. If you are happy with the
solution, you are more likely to follow through12 than if a third party, such as the Harassment
Committee, imposed a decision on you.
Most mediators have a standard Agreement to Mediate that they ask parties to sign during the
first joint session. This gives them the opportunity to review the agreement with their law-
yers after their individual sessions. The Agreement to Mediate describes the parties involved,
the role of the mediator, the terms of confidentiality and privilege, the issues to be mediated,
remuneration for the mediator, and important ground rules. Some mediators include a state-
ment about legal advice, clearly establishing they have suggested that the parties obtain inde-
pendent legal advice from the outset of the process. The signatures of the parties indicate
their commitment to the process. Facilitative mediators could encourage parties to build
12 Research suggests that parties are more likely to follow through on mediated agreements, particularly if
they feel the process was fair (Howieson, 2011).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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256 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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their own Agreement to Mediate or tailor the mediator’s standard form in order to meet their
needs. Negotiating the Agreement to Mediate may be difficult because of the initial level of
conflict between the parties, their lack of experience with mediation, and the possibility that
they will insist on terms that are inconsistent with the mediator’s model of practice. Medina
asks Elvis and Englebert to sign the Agreement to Mediate as per Box III.1.
BOX III.1
AGREEMENT TO MEDIATE
1. PARTIES: Elvis John Cameron and Englebert Younas are employees of Conflictia
Software Enterprises (C- Soft) who agree to mediate a conflict that arose between
them at work. They agree to act in good faith and to share all relevant information
so they can work out an agreement in an amicable manner.
2. MEDIATOR: Medina Sellers has been hired by C- Soft to help employees resolve
workplace conflicts. Her role is to help the employees discuss their concerns and
work toward an agreement that satisfies both of their interests. Medina will act
as an impartial mediator, meaning that she will not side with either employee or
make decisions for them.
3. VOLUNTARY: Mediation is a voluntary process. Although C- Soft encourages its
employees to resolve disputes in an amicable manner, C- Soft will not impose sanc-
tions on the parties for refusing to mediate or for failure to come to an agreement.
Either employee may terminate mediation at any time in the process.
4. CONFIDENTIAL AND PRIVILEGED: All information provided by the parties
during mediation will be kept confidential and privileged, unless the parties provide
express written consent or the mediator is required by law to disclose information
(e.g., if a person is put at risk of physical harm). The mediator’s records will not be
shared with other employees of the organization. The parties agree that they will not
subpoena the mediator or her records for any trial, hearing, or other legal proceeding.
5. AGREEMENT: If the parties reach agreement during mediation, the mediator will
write down the terms of the agreement in a letter to the parties. The agreement will
not become a legally binding agreement unless the parties agree to have their law-
yers draft a formal contract based on the terms set out in the letter.
6. LEGAL ADVICE: The mediator has explained the benefits of independent legal
advice to the parties. They have both chosen not to hire lawyers at this time. The
mediator will not provide legal advice to the parties but will ensure that they have
time to meet with a lawyer during mediation, on their request.
7. FEES: C- Soft will pay the mediator $250 per hour for up to 6 hours of media-
tion. If the parties choose to mediate beyond 6 hours, then they will each pay the
mediator $120 per hour for any time beyond the initial 6 hours. All fees are due
prior to the mediation session.
signed on April 23, 20XX indicating our understanding and agreement to the terms
above:
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
englebert Younas Medina sellers
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
elvis John Cameron
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Mediation 257
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This Agreement to Mediate is relatively simple, using plain language. Some mediators
use more detailed and legalistic agreements. The Agreement to Mediate should reflect the
mediator’s approach to mediation and legal issues that may arise in the context of the con-
flict. Consider which approach to mediation this document seems to reflect. How would
you alter it to suit one of the other approaches to mediation?
Parties who have never mediated before often require repeated explanations of the
mediation process. They may be self- absorbed in their feelings about the conflict, making
it difficult to focus on the mediator’s explanation of mediation. People frequently confuse
mediation with adjudication, thinking the mediator will make decisions for them in spite of
the mediator’s opening statement.
If the parties do not agree to participate in mediation, the mediator can help them
explore other alternatives to resolving their dispute. Depending on the context, clients
may be interested in information about therapy, adjudication, evaluation, or other pro-
cesses. To maintain neutrality, the mediator provides information but avoids providing
suggestions or opinions. Regardless of whether the parties are interested in other pro-
cesses, mediators can leave the door open for parties to return to mediation if they change
their minds.
3. Storytelling and Issue Definition
The storytelling and issue definition phase begins with storytelling by each party and concludes
with the parties agreeing on the specific issues to be dealt with in mediation. Issues are the ques-
tions, matters of concern, or topics that the parties wish to resolve through mediation
(Moore, 2014). The issues that the parties initially identify may not be the ones that they
eventually agree upon, as the mediator helps the parties frame their concerns in a construc-
tive manner.
As the parties tell their stories, they may express anger, frustration, or other strong feel-
ings. The mediator absorbs some of the conflict, allowing the parties to ventilate, listen-
ing attentively, demonstrating empathy, and avoiding defensive responses. Medina’s earlier
assessment suggested that Englebert tends to avoid conflict, only responding more assert-
ively when the cause of the conflict has exacerbated. Accordingly, she decides to have him
tell his story first. She tells the parties that Englebert will go first since he is the one that
originally raised the concerns about what was happening at C- Soft. She reassures Elvis that
he will have an equal opportunity to speak. She provides both Elvis and Englebert with
paper and pens to write down any thoughts that come to mind as they are listening to the
other person. Elvis expresses concern that he is being put on trial. Medina notes the pur-
pose of this phase of mediation is to allow each of them to hear what the other is concerned
about; she is not going to make any judgments.
If Medina adopted a SFM, she would ask the parties to focus on present concerns. “What
concerns do you want to resolve here in mediation?” She would put relatively tight limits
on their storytelling or expression of feelings. If Englebert started to discuss why he took a
job at C- Soft or how angry he felt when Elvis shaved his head, Medina would acknowledge
Englebert’s views but quickly refocus Englebert on what needed to be resolved in media-
tion. A settlement- focused mediator wants to get to the crux of the negotiable issues as
expeditiously as possible.
If Medina used IBM, she would allow for more storytelling, historical detail, and expres-
sion of feelings. She might begin by asking each party, “What concerns bring you to media-
tion?” Interest- based mediators are interested in having the parties identify negotiable
issues, but they realize giving the parties time to process feelings is an integral part of CR .
People need to feel heard— by the mediator and by the other party— in order to be able

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to move forward and negotiate solutions. When people say, “I want my day in court,” they
typically mean that they want an objective third person to hear their story. Paradoxically,
“getting one’s day in court” is more likely to happen in mediation than court. In court, law-
yers and judges control what the parties can say and when. A mediator will use active listen-
ing skills to demonstrate empathy, without taking sides. The mediator may also encourage
each party to use active listening skills to validate each other’s feelings.
Englebert, thank you for sharing your concerns with us. Elvis, what were some of the main
points that you heard from Englebert? You don’t have to agree with him— I am just asking
what messages you understand from what he said.
Empathy refers to demonstrating emotional identification or communicating a sense of
understanding (Ivey et al., 2014). The active listening skills identified in Chapter 1 form
the basis of providing empathy and validation. Whereas most helping professionals use
these skills to demonstrate empathy themselves, the mediator’s role is somewhat differ-
ent. Mediators teach these skills to the parties so they can demonstrate empathy to one
another. Each party learns about the other’s perspective. In the process, they may develop
joint understandings.
Englebert tells of 10 different incidents in which Elvis harassed him but does not spe-
cifically identify what he wants to deal with in mediation. Given that this is the issue defi-
nition phase, Medina helps Englebert clarify which concerns he would like to address in
mediation.
From what you’ve been saying , I understand that you believe that Elvis has mistreated you
ever since you began working for C- Soft. Now, given all that has happened, what specifically
do you think we need to work on during mediation?
Note how the language directs Englebert to identif y issues for work, not positions
or possible solutions. Parties often want to move to solutions early in the process.
Unfortunately, this may cause them to become entrenched in positions before trust has
been built and before the underlying interests have been identified. The process of help-
ing parties clarif y interests contributes to their empowerment. If they do not have a clear
sense of the issues and their underlying interests, they cannot help but operate out of
ignorance.
While settlement- focused mediators keep storytelling relatively brief, more facilitative
mediators may encourage parties to share details of their experiences and perceptions. As
each person reviews the history of events, the mediator encourages the other person to
acknowledge new insights or information. Elvis says that he thought Englebert was con-
senting to the hazing process. Elvis tells how surprised and angry he was when his supervi-
sor came up to him one day and said a harassment complaint had been laid against him.
Englebert believes Elvis is minimizing his actions. He also has trouble believing that Elvis
thought he had consented to the hazing. Medina responds:
You think Elvis knew that you were opposed to being hazed. Is there anything Elvis has said
today that you did not realize before?
This allows Englebert to acknowledge that he did not know Elvis was shocked and angry
when he received the harassment complaint. Elvis has not agreed with Englebert’s points,
but he has demonstrated some understanding from Englebert’s perspective. This helps
build trust between the parties.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Mediation 259
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13 For instance, blame, judgment, anger, or aggressiveness.
Maintaining mediator impartiality can be difficult where, as in the present case, one party
is the obvious aggressor and instigator. However, mediation is not about blaming. If Elvis feels
judged by the mediator, he is likely to withdraw from the process. The mediator might believe
that an appropriate solution includes an apology, compensation, or even punishment. The
mediator needs to be aware of these biases and allow the parties to come to their own solutions.
Throughout the storytelling, Medina takes notes to help her identify issues and to keep
track of important information from one mediation session to the next. She limits her note-
taking so she can give the parties generous eye contact. Further, she does not want to appear
as though she is gathering evidence. She allows both parties to see her notes. Her notes are
not particularly interesting to either of them, because they do not include any of the media-
tor’s interpretations or suggestions.
To help the parties clarify the issues to carry forward in mediation, Medina lists both of
their concerns on a flipchart. The issues may be listed as questions or brief bullets to indicate
topics to be discussed. As she lists them, she frames the issues so they are positive, mutual, and
future- focused (see Exercises 17 and 18 at the end of the chapter for further descriptions of
reframing). By framing the issues in this manner, the mediator removes the sting13 from the
conflict and sets the stage for collaborative problem solving. Medina lists the issues as follows:
• What to do about the hazing that has already occurred?
• Will Englebert press his concerns forward with the Harassment Committee?
• What type of work relationship do Englebert and Elvis want, if any?
• How will Elvis and Englebert handle any future conflicts at work?
Medina checks to see whether the list of issues is exhaustive, balanced, and clear. She tries to
frame the issues as open- ended questions to promote creative problem solving; yes– no ques-
tions may limit the parties to thinking there are only two choices. Upon checking complete-
ness of the list of issues, Englebert and Elvis say they have no further concerns. For the first
issue, Medina tries to reframe “hazing that has already occurred” to “past treatment between
Englebert and Elvis.” Englebert objects because he did not mistreat Elvis. Elvis admits to
hazing, so he is comfortable with the initial phrasing. Both parties summarize the issues,
indicating they have a common understanding about the issues that need to be resolved in
mediation. They begin to prioritize which issue to deal with first. The mediator helps the
parties identify their priorities, as well as which issues can be resolved more easily. Englebert
says that he is not currently planning to take the case to the Harassment Committee, so that
issue is not urgent. They agree that the first issue needs to be dealt with first, before they can
move on the other issues. Medina believes it would be easier to talk about their relationship
first, to help build trust and collaborative spirit. Dealing with easier issues first also fosters
momentum of agreement. If she adopted SFM, she might be more directive. However, the
more facilitative IBM suggests giving the parties greater control over the process, particularly
if they can readily agree on process issues. Medina congratulates them on being able to come
to a clear and comprehensive agreement about the issues for mediation.
4. Exploring Needs and Interests
Exploring needs and interests is the crux of IBM. It may also be used SFM, though it may
receive less emphasis. During this phase, the mediator encourages both parties to identify their
individual interests as well as interests that they have in common. Settlement- focused mediators

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move through this phase quickly, allocating more time to problem solving than to analyzing
the problem. To deal with the issue of past hazing, Medina asks each party to identify their
own feelings about what has happened. Englebert says he feels embarrassed, degraded, and
alienated. Medina explores why he feels embarrassed. Englebert admits that he was not able
to confront Elvis directly and had to go to his supervisor for help. He thinks he should have
been able to stand up for himself.
Elvis says he is “pissed off ” at Englebert for putting his job in jeopardy when all he
was doing was fooling around. Medina validates Elvis’s feelings and explores what is
underneath them:
I can see you’re very angry with Englebert. This tells me these issues are very important to you.
Besides feeling angry at Englebert, what else do you feel?
Elvis says he’s not into this “touchy- feely stuff.” Medina responds nondefensively:
You don’t need to talk about anything you don’t want to. I’m just wondering , when you men-
tioned you were “pissed off,” what exactly were you trying to say?
This gives Elvis the opportunity to say that he was scared he might lose his job over a
couple of pranks. If Elvis is still uncomfortable disclosing feelings, the mediator will not
push the issue too far.
Medina explores underlying issues concerning how the conflict has affected them
at work.
How do you think your coworkers see you? And how has this conflict affected their opinions
about you?
Elvis says his coworkers used to respect him. They thought he had a good sense of humor.
Once rumors of a harassment case got out, they started to think he was a bully. Englebert,
however, always felt his coworkers thought he was a wimp. Having to go to his supervisor for
help probably just confirmed this opinion. Englebert starts repeating his life history of being
hazed and bullied. Medina refocuses him on the present issues. She explains the process of
interest- based negotiations and asks them to identify their underlying interests.
We’ve talked about many different issues. Now, let’s focus on your key interests. When you
think about what needs to be done to deal with the hazing that’s already occurred, what is
most important to you?
Elvis responds that he wants Englebert to drop the harassment charges and advise their
supervisor that they had worked things out. This is a position or solution rather than an
interest. Medina helps him explore what interests underlie his suggestion.
When you say you want the harassment charges dropped, why is this important to you?
From this line of questioning, Elvis identifies “job security” as a primary interest.
Medina continues the process of helping Elvis and Englebert identify underlying concerns.
Eventually, they arrive at the following list:
• job security (financial security)
• respect from coworkers
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Mediation 261
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• respect from each other
• an end to the dispute, as soon as possible
They agree that these are mutual interests, although they may have different meanings or
levels of importance to each party. Medina writes these on the flipchart and commends
them once again for their hard work and good faith.
5. Negotiation and Problem Solving
Negotiation and problem solving are the central foci of the settlement- focused approach,
as well as integral parts of IBM. At this point, the mediator has established trust with the
parties. They have committed themselves to dealing with particular issues and they have
identified their underlying interests. This phase moves them from interests to solutions.
Strategies at this phase include option generation, identifying objective criteria, and draw-
ing the parties’ awareness to the cost of nonagreement. These strategies are similar to the
material presented in Chapter 6 on interest- based negotiation, except the mediator facili-
tates the parties through these processes. For example, both parties have expressed an
interest in job security. Medina asks them to brainstorm options for solution. She lists
their suggestions: Both parties continue to work for C- Soft; Elvis quits and finds another
job; Englebert quits and finds another job; they start their own company; they work for
different divisions of the same company; they return to their old jobs; or one of them
wins the lottery and they split the winnings. They cannot think of any other options at
this time.
Englebert thinks Elvis should quit because he was responsible for the conflict in the first
place. Elvis thinks Englebert should quit because Elvis has seniority and Englebert is still on
probation. Medina explains the need for objective criteria for decision making.
Each of you has good arguments from your own point of view. What we need is an objec-
tive way to analyze this problem. What factors would a complete stranger suggest for how
to resolve this issue? Someone who doesn’t know either of you and has no stake in the
outcome.
They agree that their decision should be based on two factors: fairness and practicality.
They define fairness as equal treatment (Menkel- Meadow & Wheeler, 2004). If one person
leaves the job, then both also have to. It would not be very practical for both to leave their
jobs, so they agree to work out a solution where both continue to work for the company.
They like their jobs and think that they can work things out where they can work together,
side by side.
Englebert says that in order for him to gain respect from his colleagues, Elvis needs to
get up in front of all of the employees and make a public apology. Elvis rejects this solution
out of hand and threatens to terminate the mediation process. Both parties start raising
their voices. Medina acknowledges their frustration but notes how hard they have worked
to get this far. She suggests a brief break to allow them to regain their composure. A more
facilitative mediator might avoid calling a break at this point, giving the parties an oppor-
tunity to work through their emotions rather simply trying to calm them down so they can
negotiate rationally and unemotionally.
After the break, Medina reviews the process, emphasizing their progress and acknowl-
edging their feelings about the impasse. A settlement- focused mediator might be directive
at this point, emphasizing the cost of disagreement (their Best Alternatives to a Negotiated
Agreement [BATNAs]). In this case, if the parties do not come to an agreement, Englebert’s

262 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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BATNA is to pursue the case through the Harassment Committee. This process could be
lengthy, adversarial, and embarrassing to both parties. Neither one knows how the commit-
tee would decide this case. An interest- based mediator may also draw the parties’ attention
to their BATNAs, but in a less directive or explicit manner. The mediator could encourage
the parties themselves to identify the consequences of nonagreement, rather than have the
mediator suggest them.
In this case, Elvis and Englebert agree to move forward in mediation. Englebert is reluc-
tant to back down from his request for a public apology, feeling that he will look like a wimp
once more. Medina offers the following metaphor:14
Have you ever heard the story about the ship that sees a light shining through the fog? As the
ship approaches the light, the captain sends a call on his radio: “This is the captain of the
USS America. You are headed directly toward us. Please turn your vessel portside to avoid
collision.” The reply comes, “I am sorry we cannot oblige. Please divert your course.” As the
ship moves closer, the captain becomes more adamant: “We have the right of way. You must
alter your course to avoid collision.” The reply comes once more, “I am sorry we cannot oblige.
Please divert your course.” As collision is moments away, the captain says desperately, “You
must divert your course. This is the USS America.” The reply comes, “You must divert your
course. This is a lighthouse.”
The parties chuckle at the joke and then discuss its lesson. Sometimes it is better to back
down; getting your own way is not beneficial if it means you will crash and burn.15 Medina
reminds them that there is a difference between backing down from a position and back-
ing down from an interest. She encourages both parties to pursue their interests, in this
instance, the respect of their coworkers. A public apology is one option, but not the only
one. Elvis says he respects Englebert for reconsidering this issue. He wants to come up with
a solution that works for both of them.
They explore various options and create one that seems to satisfy both parties’ interests.
Although Elvis is not prepared to make a public apology, he offers Englebert a sincere apol-
ogy in private. They agree to send a memorandum to their coworkers, explaining that they
had gone to mediation and come to an amicable agreement. They work through the exact
wording of the memorandum and what each of them will disclose orally to their coworkers.
They do not want to disclose the full details of the conflict, because both still felt embar-
rassed about it.
Mediation continues until they come to tentative agreements about all of the issues in
dispute. Some issues become immaterial when other solutions fall into place. By this point
in the process, the parties are able to work together, collaboratively, with less direction from
the mediator.
6. Finalizing an Agreement
Once an agreement in principle has been reached, the parties must decide how to finalize it: as an
informal understanding , as a legally enforceable agreement, or as a court order on consent of the par-
ties. This is not a case that has been filed in court, so initiating a case just to secure a court order
is not practical. The parties agree that there is no need for a legally binding agreement. They
14 Original source unknown.
15 This story can be used for other lessons, including the importance of listening and clear communication.
Innocent misunderstandings can lead to grave consequences.

Mediation 263
263
believe the issues are more about their relationship than about their legal rights. The mediator
offers them an opportunity to obtain legal advice, but both decline. They opt for an informal
understanding that the mediator will summarize in a letter addressed to both parties.
Medina works through the letter with the parties. A settlement- focused mediator is
likely to suggest the wording of the informal agreement because this is most expedient.
An interest- based mediator is more facilitative and therefore more apt to ask the parties to
suggest its wording. Medina uses plain language, avoiding legalese. Her letter includes the
following paragraphs:
The purpose of this letter is to summarize my understanding of the terms of the agree-
ment you reached in mediation. This is an informal agreement that is not intended to
be legally binding. The agreement will work as long as both of you remain committed to
it. If there are any problems with the agreement, you may return to mediation to work
these out.
Both of you agree to treat each other with respect. To promote a positive working
relationship, you have agreed that you will not participate in any hazing rituals at C- Soft.
You have also agreed to circulate the attached memorandum to your coworkers. Neither
of you will talk to coworkers about other details or issues discussed in mediation.
If either of you has a concern about how the other has treated you, your first step
will be to meet with the other in private to discuss your concerns. If the issue cannot be
resolved through one- to- one discussions, then either of you may request the help of a
supervisor or mediator.
Medina reviews this agreement with the parties to ensure that it reflects their intentions
accurately. She asks about potential problems in implementing the agreement. Elvis says that
C- Soft needs to consent to distribution of the memorandum before they distribute it to their
coworkers. Elvis and Englebert agree to take the agreement to their supervisor to ask for per-
mission to circulate the memorandum. If they cannot work out the arrangements with the
supervisor, they will contact the mediator to discuss other alternatives. Ideally, the mediation
agreement is self- enforcing; that is, the agreement can be enforced by the parties themselves,
without the need for a third party to monitor and enforce the agreement. If external monitor-
ing or enforcement is needed, methods of enforcement should be specified.
Many mediators let the parties decide whether to return for follow- up. Some facilitative
mediators include follow- up as part of their process. Follow- up provides the parties with a
time and place to ensure that the agreement is being implemented and to problem- solve
any areas of concern. Accordingly, they will schedule a specific time and place for follow- up
before dismissing the clients.
The mediator concludes this phase by reinforcing the progress that the parties have made
and by offering encouragement to move forward. Settlement- focused mediators reinforce
the fact that the parties have come to their own agreement. Interest- based mediators congrat-
ulate the parties on being able to work cooperatively and resolve their underlying interests.
7. Follow- up
Follow- up with the parties serves a number of purposes: The mediator can reinforce the parties’ prog-
ress; new issues can be mediated; the mediator can refer the parties to additional services, as needed;
and the mediator can solicit feedback for research and program development purposes. Facilitative
mediators, in particular, recognize that conflict is not over just because an agreement has been
reached. Implementation of the agreement can raise a whole new set of issues: resistance from
other people or systems; problems with enforcement; frustration or despair when things do

264 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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not work out as well as expected; and conflicts around issues that were not previously expected.
Conflict is not necessarily resolved but managed. Ongoing issues are apt to arise, particularly
if the parties expect to have an ongoing relationship. Ideally, the parties have gained CR skills
through participation in mediation. This enables them to deal with conflict more effectively on
their own. Sometimes, the mediator frames the parties’ agreement as a “nonbinding interim16
agreement” or “trial run.” This allows the parties to test whether the trial agreement is working
and return to mediation to see if the agreement needs tinkering or more substantial renegotia-
tion. Parties who seem headed toward impasse might be more inclined to agree to a trial run
than a permanent agreement. If both try to follow the tentative agreement in good faith, they
will be better able to reach a more permanent agreement at follow- up.
In general, settlement- focused mediators do not emphasize follow- up. Their goal is to
help the parties reach settlement. Still, follow- up could be used to help the parties ensure
that settlement endures. In other words, the mediator uses follow- up to monitor compli-
ance.17 If there are problems with compliance, the mediator could help the parties mediate
a revised agreement or explore different means of enforcement.
For interest- based mediators, the focal points of follow- up are satisfaction and ongo-
ing collaboration. If the parties are not satisfied with the agreement, the mediator can help
them renegotiate. If the relationship between the parties has soured, the mediator can refo-
cus them on the importance of cooperation.
Follow- up acts as a booster session, providing support for their continued efforts and inoc-
ulating them against returning to problematic patterns of managing conflict. In the present case,
Elvis and Englebert return for follow- up 6 weeks after finalizing their agreement. They review
implementation of the agreement, including successes and problems. Englebert reports that
distribution of the memorandum and responses to it were positive. Elvis also affirms a more
positive work environment at C- Soft. Medina cautions them that there may be rough spots in
the future, pre- empting possible disappointment if things did not continue to go so well. She
also congratulates them on making their agreement work.
Englebert does have one concern. C- Soft had just issued a policy against hazing new
employees. He feels somewhat embarrassed because people were calling this the “Englebert
Policy.” Elvis demonstrates recognition by acknowledging how these comments singled out
Englebert. As Elvis and Englebert talk about the Englebert policy, they begin to realize that it
was nothing to be embarrassed about. Elvis jokes that he is jealous that there was no “Elvis pol-
icy.” Elvis and Englebert agree that when people at C- Soft referred to the Englebert policy, they
would add, “You mean the Elvis and Englebert policy,” taking pride in ownership of this policy
and removing the hurtful connotations that some coworkers may have intended.18 Medina
commends them on the progress they had made since their first mediation session.
16 Interim refers to an agreement or court order that is only expected to be followed until a more perma-
nent agreement or order is made. Sometimes, interim orders or agreements are made “without prejudice,”
meaning that the parties’ rights and obligations are not prejudiced by the terms of the interim order or
agreement. If there is a possibility that interim agreements will affect the parties’ rights, ensure that they
have access to legal advice before agreeing to the interim arrangement. Consider a divorce situation in
which the parents reach an interim agreement stating the children will have temporary residence with their
mother. This could create a status quo that would be difficult for the father to contest in the future, because
courts are reluctant to change a child’s residence once it has been established.
17 Follow- up could also be pursued by an administrative person from the agency rather than the mediator.
18 This fits with the children’s motto, “Sticks and stones may break my bones, but names will never hurt me.”
Name- calling hurts only if one lets it. Often, minority groups that have been labeled with derogatory terms
will take these terms and adopt them as a badge of pride (e.g., gays who accept the moniker “queer”).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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This case demonstrates many of the decisions, skills, and activities that comprise media-
tion. Some aspects of the process have been abbreviated for demonstration purposes. It is
not intended to be “the perfect case.” Each of your own cases will present you with unique
clients, diverse issues, varied levels of conflict, and distinct choices for how to implement
the seven phases of mediation.
COMPARING MEDIATION WITH INTERVENTIONS
OF O THER HELPING PROFESSIONS
One way to gain a deeper understanding of mediation is to learn how the role of a media-
tor is similar to and different from other helping professions. For example, is SFM simply a
form of legal practice? How is therapeutic or transformative mediation different from ther-
apy (Irving & Benjamin, 2002/ 2012; Wall & Spira, 2012)? To what extent do you have to
change your skills, strategies, and ethical standards when you switch hats from your original
professional identification to that of a mediator? Table III.1 provides a comparison of three
professions: mediation, social work, and law. I use the interest- based model of mediation,
the generalist model of social work,19 and a traditional adversarial model of law for the pur-
poses of demonstrating these comparisons.
Both law and social work view mediation as a possible role that these professions
include. However, when you analyze the orientations, values, and methods of the three
models as described in Table III.1, significant differences emerge. The traditional role of
a lawyer is that of an advocate who pursues the rights and interests of one party involved
in a conflict. Similarly, most social workers are used to advocating for particular clients or
causes. To assume the role of a mediator, lawyers or social workers must suspend their ori-
entation as advocates and become impartial facilitators. Mediators allow clients to nego-
tiate on their own behalf. Although mediators support each party’s ability to negotiate,
they do not support a particular position or solution. Impartiality is one of the most dif-
ficult transitions for advocacy- oriented helping professionals to make when they become
mediators.
In terms of values, each of the three professions emphasizes the right of clients to make
self- determined choices. They respect individuality and the self- worth of all people. Some
people view law as contrary to self- determination because courts impose solutions on parties.
However, court is an avenue of last resort, even for lawyers. Preferably, conflicts are resolved
through party- to- party or lawyer- led negotiations (Lastovka, 2015). Court is used only when
the parties are unable to come to a solution on their own.
The similarities and differences between professions depend on the models of interven-
tion being compared. For example, the therapeutic and transformative models of mediation
adopt methods that are similar to those used by clinical social workers, psychologists, and
other mental health professionals. The settlement- focused model of mediation focuses more
on rights and resolving legal issues, similar to the traditional practice of law. As mediation
continues to evolve, helping professionals should consider how it relates to their original
professional identities and what changes they need to adopt in order to assume the role of a
mediator.
19 The Generalist Intervention Model is one of the more popular models of practice taught in schools of social
work. This model provides the foundation of knowledge, strategies, and skills that frame many different
interventions with individuals, families, groups, organizations, and communities. Generalist social work-
ers work with various types of social systems, often focusing on the interactions between these different
types of systems.

266
TABLE III.1. Comparison of Mediation, Social Work, and Law
Mediation: Interest- Based Model20 Social Work: Generalist Intervention
Model21
Law: Traditional Adversarial Model22
Definition A specialized problem- solving process
in which an impartial third party
helps disputing parties try to reach
a mutually acceptable settlement
by facilitating communication and
negotiation between them.
A planned- change framework that guides
practitioners to help clients deal with
biospsychosocial problems issues using
a broad range of knowledge, skills, roles,
and strategies, rather than specializing in a
narrow range of clinical interventions.
An approach to resolving disputes over legal
rights and responsibilities requiring each
attorney to advocate zealously on behalf of
the particular client he or she is serving.
Approaches helps clients deal with conflicts in a
manner that satisfies their underlying
interests.
helps clients cope and adapt to their social
environment, as well as change their social
environment.
provides each client with a specialized
advocate who uses positional negotiation
strategies in hopes of maximizing rights and
gains for the client.
focuses on relationships rather than
rules.
promotes social and economic justice. focuses on rules rather than relationships.
encourages joint problem solving. Incorporates generalist social work
knowledge, skills, and values throughout the
planned- change process.
provides each client with a legal representative
in court who will debate legal rights and
present evidence in favor of the client.
focuses on future. Avoids assigning
blame (restoration; remediation).
focuses on the present and future. Clients
and workers work together in a mutual
relationship to deal with identified problems
for work. focus is on responsibility for
change rather than judging or blaming.
In litigation role, focuses on determining
blame (or legal liability) and innocence (or
superior rights) for past acts.
Makes clients responsible for deciding
how to deal with the conflict.
targets a range of social systems for change,
including individuals (micro), families
and groups (mezzo), and organizations,
communities, and society (macro).
Discourages collaboration. gives attorneys
and judges control over how to deal with the
dispute (even though clients are responsible
for instructing their attorneys how to act).
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llan. C
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estorative Justice, O
xford
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niversity P
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267
(continued)
premises Conflict is a natural phenomenon,
dealt with effectively through
collaborative processes.
Client problems relate to interactions and
stresses in various systems, including family,
community, work, and cultural systems.
truth and justice are most likely to emerge in
an adversarial process where each party has a
professional advocate.
Clients should be responsible for
making decisions over matters
affecting themselves.
Clients are often prevented from fulfilling
their potential because of lack of resources,
oppression, and discrimination.
Clients do not have sufficient legal knowledge
and advocacy skills to represent themselves in
a dispute.
Clients are more likely to follow
through on arrangements that they
have discussed and agreed on.
Clients are expert in their own lives
and are capable of handling a range of
biopsychosocial issues on their own.
Disputes should be resolved on the basis of
who has the best arguments, based on current
laws, case precedents, and the most credible
evidence to support a case.
Conflict should be resolved based on
ways to satisfy the clients’ interests
(rather than power, rights. or
precedents).
Clients are more likely to fulfill their
potential if they are allowed to function in
a more supportive environment, which can
include the support of helping professionals.
Constitutional and legal rights protect people
from being coerced or oppressed. lawyers help
by ensuring that these rights are enforced.
Roles Impartial facilitator, intermediary,
negotiation coach, coordinator,
educator (information, not advice).
enabler, mediator, coordinator, general
manager, educator, evaluator, broker,
facilitator, initiator, negotiator, mobilizer,
and advocate.
Advocate, mouthpiece, draftsperson;
interviewer, assessor, advisor, and counselor.
As a mediator, generalist social workers
enhance interactions between individual clients
and systems in their social environments.
(Alternative roles for attorneys include
arbitrator, judge, mediator, legislator, and
policy formation.)
Values and
ethics
self- determination. self- determination. Autonomy and freedom.
empowerment. Belief in the problem- solving capacities of
clients.
equality.
Respect for all people;
nonjudgmental.
Respect for uniqueness and individuality of
clients.
procedural rights (fair trial; innocent until
proven guilty; justice is blind).
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arsky, A
llan. C
onflict R
esolution for the H
elping P
rofessions : N
egotiation, M
ediation, A
dvocacy, F
acilitation, and R
estorative Justice, O
xford
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niversity P
ress, Incorporated, 2017. P
roQ
uest E
book C
entral, http://ebookcentral.proquest.com
/lib/liberty/detail.action?docID
=
4792771.
C
reated from
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268
Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model
Neutral/ impartial third party. Acceptance of and belief in the worth and
dignity of human beings.
full disclosure; sharing information
between parties.
Access to information (education as power). limited disclosure (only what is legally
required).
Confidentiality. Confidentiality. Confidentiality; privacy.
fair negotiation. Access to resources and opportunities to
realize one’s potential.
Justice.
Voluntariness. Ambivalence— tolerates coexistence of
different and opposing attitudes or beliefs.
Right to legal advice. Access to resources.
professional integrity. professional integrity. professional integrity.
Win- win solutions. social relationships. Competition and winning.
Clients have a right to competent
mediators.
Clients have a right to competent social
workers.
Clients have a right to competent lawyers.
focus Conflict between the parties and
others affected by the conflict.
Interface between the person and
environment.
legal rights and obligations.
future. Reciprocal and adaptive processes. Individual entitlements and social
responsibilities.
objective criteria.
problem solving.
Collaboration.
Combating oppression and abuses of power
in social structures (germain & gitterman,
1996).
Accountability for one’s actions.
Client-
professional
Relationship
Clients agree on the definition of
the problem and on the solution;
mediator is impartial.
Client and social worker agree on the
definition of the problem and on the
solution (mutuality).
Client defines the problem and decides upon
the solution, with advice of the lawyer.
Mediator neutrality is crucial to
establishing trust and fairness of the
process.
Worker neutrality and impartiality as part of
“professionalism” are rejected.
lawyers advocate for one party; neutrality is
rejected unless lawyer is acting as a mediator
rather than as an advocate.
Mediator is a reflective practitioner. Worker self- awareness is necessary to
minimize distorted or maladaptive
communication (emphasizes use of
supervision).
Ability to think like a lawyer requires
objectivity, but self- awareness is not
emphasized.
uses neutrality and empathy to
build trust.
uses empathy, genuineness, and
unconditional positive regard to
build trust.
trust depends on integrity and expertise of
lawyer.
Debate as to whether the mediator
needs to ensure a balance of power
between the parties (Mayer et al.,
2012).
Workers have specific obligation to challenge
social and economic injustice, including
oppression and discrimination.
lawyers have special obligations to serve
and protect those who are disadvantaged or
subjected to discrimination.
structure/
phases
• preparation • engagement— Worker builds rapport with
client through outreach, demonstrating
empathy and respect, and explaining
confidentiality and terms of service.
• problem Identification— lawyer helps
identify problem from client’s perspective.
• orientation • Assessment— Worker and client gather
information about clients strengths
and needs in order to jointly determine
problem(s) for work, goals, and priorities.
• option generation— lawyer involves
client in the process of exploring potential
solutions.
TABLE III.1. Continued
B
arsky, A
llan. C
onflict R
esolution for the H
elping P
rofessions : N
egotiation, M
ediation, A
dvocacy, F
acilitation, and R
estorative Justice, O
xford
U
niversity P
ress, Incorporated, 2017. P
roQ
uest E
book C
entral, http://ebookcentral.proquest.com
/lib/liberty/detail.action?docID
=
4792771.
C
reated from
liberty on 2020-02-16 20:29:36.
Copyright © 2017. Oxford University Press, Incorporated. All rights reserved.

269
Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model
Neutral/ impartial third party. Acceptance of and belief in the worth and
dignity of human beings.
full disclosure; sharing information
between parties.
Access to information (education as power). limited disclosure (only what is legally
required).
Confidentiality. Confidentiality. Confidentiality; privacy.
fair negotiation. Access to resources and opportunities to
realize one’s potential.
Justice.
Voluntariness. Ambivalence— tolerates coexistence of
different and opposing attitudes or beliefs.
Right to legal advice. Access to resources.
professional integrity. professional integrity. professional integrity.
Win- win solutions. social relationships. Competition and winning.
Clients have a right to competent
mediators.
Clients have a right to competent social
workers.
Clients have a right to competent lawyers.
focus Conflict between the parties and
others affected by the conflict.
Interface between the person and
environment.
legal rights and obligations.
future. Reciprocal and adaptive processes. Individual entitlements and social
responsibilities.
objective criteria.
problem solving.
Collaboration.
Combating oppression and abuses of power
in social structures (germain & gitterman,
1996).
Accountability for one’s actions.
Client-
professional
Relationship
Clients agree on the definition of
the problem and on the solution;
mediator is impartial.
Client and social worker agree on the
definition of the problem and on the
solution (mutuality).
Client defines the problem and decides upon
the solution, with advice of the lawyer.
Mediator neutrality is crucial to
establishing trust and fairness of the
process.
Worker neutrality and impartiality as part of
“professionalism” are rejected.
lawyers advocate for one party; neutrality is
rejected unless lawyer is acting as a mediator
rather than as an advocate.
Mediator is a reflective practitioner. Worker self- awareness is necessary to
minimize distorted or maladaptive
communication (emphasizes use of
supervision).
Ability to think like a lawyer requires
objectivity, but self- awareness is not
emphasized.
uses neutrality and empathy to
build trust.
uses empathy, genuineness, and
unconditional positive regard to
build trust.
trust depends on integrity and expertise of
lawyer.
Debate as to whether the mediator
needs to ensure a balance of power
between the parties (Mayer et al.,
2012).
Workers have specific obligation to challenge
social and economic injustice, including
oppression and discrimination.
lawyers have special obligations to serve
and protect those who are disadvantaged or
subjected to discrimination.
structure/
phases
• preparation • engagement— Worker builds rapport with
client through outreach, demonstrating
empathy and respect, and explaining
confidentiality and terms of service.
• problem Identification— lawyer helps
identify problem from client’s perspective.
• orientation • Assessment— Worker and client gather
information about clients strengths
and needs in order to jointly determine
problem(s) for work, goals, and priorities.
• option generation— lawyer involves
client in the process of exploring potential
solutions.
(continued)
B
arsky, A
llan. C
onflict R
esolution for the H
elping P
rofessions : N
egotiation, M
ediation, A
dvocacy, F
acilitation, and R
estorative Justice, O
xford
U
niversity P
ress, Incorporated, 2017. P
roQ
uest E
book C
entral, http://ebookcentral.proquest.com
/lib/liberty/detail.action?docID
=
4792771.
C
reated from
liberty on 2020-02-16 20:29:36.
Copyright © 2017. Oxford University Press, Incorporated. All rights reserved.

270
Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model
• storytelling and Issue definition • planning— Worker and client determine
best way to proceed.
• Advice— lawyer provides advice based on
client’s concerns and values.
• exploring interests and needs • Implementation— Worker and client
perform the plan (which could include
counseling, advocacy, mediation, problem
solving, referrals, etc.).
• Decisions on Action— lawyer encourages
client to make any decisions that are likely
to have a substantial legal or nonlegal
impact.
• Negotiation and problem solving • evaluation— Worker and client jointly
assess progress on goals and determine
next steps, if any.
• Implementation— lawyer pursues rights of
clients through negotiation or litigation,
as agreed.
• finalizing an agreement • termination— Worker and client work
through any outstanding issues, including
emotional issues and possible referrals.
• follow- up • follow- up— Worker contacts client
to evaluate ongoing results, offer
additional services, and promote ongoing
improvement.
Methods emphasis on relationship and
problem solving.
Dual emphasis on individual and situation. emphasis on problem rather than people;
deductive reasoning.
Attends to cognitive and affective
elements, but focuses on rational
decision making.
Attends to cognitive and affective elements. Attends to legal issues and rational decision
making.
historical material may be part of
storytelling and ventilation, but focus
is on the future.
historical material explored as it becomes
relevant to the client.
historical information may be relevant to
assigning blame, guilt, or responsibility for
compensation.
Mediator controls the process, clients
responsible for the decisions— clear
role boundaries.
Client relationship is integral part of
the helping process. Moderate degree of
mutuality is required.
Client relationship requires trust in lawyer
as expert with professional integrity. Does
not require mutual understanding of the
problem and what needs to be changed.
focus on the parties’ understanding
of the problem and what needs to be
changed.
Mutual understanding of the problem and
what needs to be changed.
lawyer receives instructions from client
about how to act, but ideal situation may be
compromised by power differentials (clients
often defer to expertise of the lawyer).
Contracting is used to submit to
the process— voluntary; consent to
ground rules, etc.
Contracting is essential to client– worker
mutuality.
Intervention geared to change of
roles, relationships, and concrete
issues.
Intervention geared to both personal
adaptation/ change and change in
environment.
Intervention geared to relationship between
disputing parties, or parties with conflicting
rights.
facilitates communication,
negotiating, and problem solving.
Cognitive restructuring, action, and
problem solving.
Negotiating, problem solving— instrumental
orientation.
Cultural issues addressed if they
pertain to underlying interests of the
parties.
understands and acknowledges differences
in age, race, gender, sexual orientation, and
socioeconomic status. Advocates for social
justice.
pursues legal remedies available for
discrimination.
20 For one of the more popular sources on interest- based mediation, see Moore (2014).
21 This column is based on Kirst- Ashman and Hull’s (2015) explanation of the Generalist Intervention Model.
22 Note that this column focuses on a traditional approach to legal advocacy. Many lawyers now use collaborative approaches to practice (see http:// www.mediate.com/
collaborativelaw).
TABLE III.1. Continued
B
arsky, A
llan. C
onflict R
esolution for the H
elping P
rofessions : N
egotiation, M
ediation, A
dvocacy, F
acilitation, and R
estorative Justice, O
xford
U
niversity P
ress, Incorporated, 2017. P
roQ
uest E
book C
entral, http://ebookcentral.proquest.com
/lib/liberty/detail.action?docID
=
4792771.
C
reated from
liberty on 2020-02-16 20:29:36.
Copyright © 2017. Oxford University Press, Incorporated. All rights reserved.

http://www.mediate.com/collaborativelaw

271
Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model
• storytelling and Issue definition • planning— Worker and client determine
best way to proceed.
• Advice— lawyer provides advice based on
client’s concerns and values.
• exploring interests and needs • Implementation— Worker and client
perform the plan (which could include
counseling, advocacy, mediation, problem
solving, referrals, etc.).
• Decisions on Action— lawyer encourages
client to make any decisions that are likely
to have a substantial legal or nonlegal
impact.
• Negotiation and problem solving • evaluation— Worker and client jointly
assess progress on goals and determine
next steps, if any.
• Implementation— lawyer pursues rights of
clients through negotiation or litigation,
as agreed.
• finalizing an agreement • termination— Worker and client work
through any outstanding issues, including
emotional issues and possible referrals.
• follow- up • follow- up— Worker contacts client
to evaluate ongoing results, offer
additional services, and promote ongoing
improvement.
Methods emphasis on relationship and
problem solving.
Dual emphasis on individual and situation. emphasis on problem rather than people;
deductive reasoning.
Attends to cognitive and affective
elements, but focuses on rational
decision making.
Attends to cognitive and affective elements. Attends to legal issues and rational decision
making.
historical material may be part of
storytelling and ventilation, but focus
is on the future.
historical material explored as it becomes
relevant to the client.
historical information may be relevant to
assigning blame, guilt, or responsibility for
compensation.
Mediator controls the process, clients
responsible for the decisions— clear
role boundaries.
Client relationship is integral part of
the helping process. Moderate degree of
mutuality is required.
Client relationship requires trust in lawyer
as expert with professional integrity. Does
not require mutual understanding of the
problem and what needs to be changed.
focus on the parties’ understanding
of the problem and what needs to be
changed.
Mutual understanding of the problem and
what needs to be changed.
lawyer receives instructions from client
about how to act, but ideal situation may be
compromised by power differentials (clients
often defer to expertise of the lawyer).
Contracting is used to submit to
the process— voluntary; consent to
ground rules, etc.
Contracting is essential to client– worker
mutuality.
Intervention geared to change of
roles, relationships, and concrete
issues.
Intervention geared to both personal
adaptation/ change and change in
environment.
Intervention geared to relationship between
disputing parties, or parties with conflicting
rights.
facilitates communication,
negotiating, and problem solving.
Cognitive restructuring, action, and
problem solving.
Negotiating, problem solving— instrumental
orientation.
Cultural issues addressed if they
pertain to underlying interests of the
parties.
understands and acknowledges differences
in age, race, gender, sexual orientation, and
socioeconomic status. Advocates for social
justice.
pursues legal remedies available for
discrimination.
20 For one of the more popular sources on interest- based mediation, see Moore (2014).
21 This column is based on Kirst- Ashman and Hull’s (2015) explanation of the Generalist Intervention Model.
22 Note that this column focuses on a traditional approach to legal advocacy. Many lawyers now use collaborative approaches to practice (see http:// www.mediate.com/
collaborativelaw).
B
arsky, A
llan. C
onflict R
esolution for the H
elping P
rofessions : N
egotiation, M
ediation, A
dvocacy, F
acilitation, and R
estorative Justice, O
xford
U
niversity P
ress, Incorporated, 2017. P
roQ
uest E
book C
entral, http://ebookcentral.proquest.com
/lib/liberty/detail.action?docID
=
4792771.
C
reated from
liberty on 2020-02-16 20:29:36.
Copyright © 2017. Oxford University Press, Incorporated. All rights reserved.

http://www.mediate.com/collaborativelaw

272 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
272
CULTURAL ISSUES
Cultural issues affect mediation practice from a number of perspectives:
• If the conflict is between parties from different cultural backgrounds, the conflict may
be based on cross- cultural miscommunication, conflicting cultural values or beliefs, or
dividing resources between people from the different cultures.
• If the mediator is not from the same culture as either party, the mediator needs to deter-
mine which knowledge, values, and skills are necessary in order to mediate in a culturally
appropriate manner.
• Each model of mediation has a number of assumptions that may or may not be valid
when working with people from different cultures (Davidheiser, 2008).
The following two sections deal with these concerns by exploring cross- cultural issues
between clients, as well as between mediators and clients. Sections 3 to 5 re- examine the
value, knowledge, and skill bases of mediation in light of cultural factors.
1. Clients from Differing Cultures
Mediators should be prepared to explore whether the nature of a conflict is rooted in cross-
cultural issues. Some mediators are reluctant to explore issues such as prejudice and power
because they are afraid about exacerbating the conflict. However, if cultural issues are
left brewing below the surface, the parties cannot deal with the real basis of the conflict.
Conversely, mediators must be careful not to assume that a conflict is caused by cultural
issues simply because the parties come from different cultures. The following strategies may
be useful in dealing with cross- cultural issues:
• Use recognition strategies from the transformative paradigm to facilitate understanding,
reconcile past miscommunications, and foster mutual respect (Folger et al., 2010).
• Validate different cultural beliefs, values, and ways of doing things, because many conflicts
do not have a right and a wrong; reinforce that conflict is a part of diversity (Bercovitch &
Foulkes, 2012).
• Separate interests and values; help the parties understand the conflict between their val-
ues and focus the problem- solving component of mediation on satisfying interests that
exist regardless of their difference in values.23
• Use cultural interpreters to help each party gain better understandings of one another.
If clients have lived most of their lives in a homogenous culture, they may have difficulty
explaining cultural norms to others in language that they can understand. Cultural inter-
preters have had experience with more than one culture, so they have learned how to
translate cultural norms from one culture to another.
• If the conflict is based on intergroup conflict, consider group approaches rather than
mediation between individuals (see Chapter 9).
Note that conflicts between helping professionals and clients may be rooted in cultural
differences, including differences in levels of education, communication styles, and
23 Because values are so deep- rooted, they are difficult if not impossible to change in a brief intervention
such as mediation. However, parties can learn to respect one another’s values without having to agree
with them.

Mediation 273
273
definitions of successful outcomes (Oetzel & Ting-
Toomey, 2013). Consider family members trying
to negotiate end- of- life care for an elder parent at a
hospice. Professionals serving at the hospice may be
using language that is foreign to the family members,
unintentionally making them feel patronized, dis-
empowered, or frustrated. The mediator can bridge
such differences by helping the parties communicate
in language that both can understand, checking out
assumptions and creating opportunities to correct
misunderstandings.
2. Mediator’s Culture
Some proponents of mediation suggest that one of its advantages is that parties can select
mediators who come from the same cultural background as themselves. Although this point
may be true, it is not necessarily an advantage nor a given (Davidheiser, 2008). Some indi-
viduals do prefer to deal with a mediator from their own cultural background: Such media-
tors bring an understanding of cultural issues into the mediation process. Furthermore,
some people do not like to air their conflicts in the general community. For example, if
the parties come from a discriminated group in society, they may distrust mediators from
outside their group. Conversely, some people prefer to take their conflicts to professionals
outside their community. The cultural group may be small and closely knit. If the parties are
concerned about confidentiality, they may believe their privacy is easier to protect with an
outside mediator.
All mediators can expect to work with people from different cultures; thus, cultural- spe-
cific education and experience are integral parts of professional development. Competence
to work with people from one culture does not ensure competence to work with people
from other cultures. Cultural competence requires specialized values, knowledge, and skills
(Barsky, Este, & Collins, 1996).
3. Values
Two values that are particularly important for mediation with clients from different cul-
tures are cultural relativism and respect for individuality. Cultural relativism suggests that no
one culture is better or worse than another; they are simply different. Accordingly, media-
tors must demonstrate respect for cultures that are different from their own, rather than
judge or impose values on them. Respect for individuality suggests that individual differences
among people from the same culture must also be respected. Mediators need to caution
against stereotypes or other generalizations that ignore diversity within the cultural group.
Contemporary professional mediators value neutrality as a means to build trust with
the parties (Moore, 2014). It allows the mediator to maintain objectivity when helping the
parties work through their conflicts. Neutrality, however, is not a universal value. For some
individuals and groups, demonstrations of neutrality might be seen as the mediator being
uncaring or dispassionate. Within some cultural traditions, mediators assume the role of
an “insider partial,” rather than “outsider neutral.” Insider partials provide moral guidance
or encourage the parties to resolve conflicts in accordance with particular values or laws
(Moore, 2014). Parties trust these mediators because of their local connection and moral
authority, rather than their neutrality (Svensson & Lindgren, 2013). Although professional
mediators from outside the parties’ culture must be wary of imposing values on the parties,
Let us not be blind to our differences—
but let us also direct attention to our
common interest and to the means by
which those differences can be resolved.
And if we cannot end our differences, at
least we can help make the world safe for
diversity. —John F. Kennedy

274 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
274
a mediator from within the culture may have greater latitude to refer clients to moral prin-
ciples accepted within their group. Such mediators should indicate their value biases to the
clients up front (e.g., “Because this is an Ismaili mediation center, I may ask you to consider
teachings from the Qur’an to help you resolve your concerns”). If the parties consent to a
mediator’s biases, then neutrality may not be essential. They may desire a mediator who is
more proactive, providing guidance and suggestions.
For an example of “insider partials,” consider traditional Chinese mediators. They live
in the same communities as the parties and use their prior knowledge and relationships
with the parties to assist with mediation. They use relatively directive strategies: calling for
parties to respect each other, encouraging parties to abide by particular Chinese moral prin-
ciples, highlighting the negative effects of the conflict on others, and providing parties with
resources to resolve their issues. Social harmony and getting along are highly valued in tra-
ditional Chinese culture. The mediator speaks on behalf the community, encouraging the
parties to resolve issues and maintain harmony (Druckman & Diehl, 2006; Moore, 2014).
Although Western, professional mediators might question the ethics of this approach, it
may be perfectly appropriate given the cultural context.
4. Knowledge and Process
Knowledge required for cultural competence depends on the context of the conflict. In
general, the mediator needs to inquire into how the parties and their cultures view each of
the following:
• What constitutes a conflict?
• How should conflict be approached?
• Which process is most appropriate for intervention?
• What constitutes resolution? (LeBaron, 1997)
Consider the following case.
Conflictia High School recently suspended Raphael Florez for acting violently in the
schoolyard. The Florez family believes that Raphael, subjected to racist taunting, was
justified in defending himself.
To answer questions about conflict with this particular family, the mediator can draw
on a number of sources: the family members themselves, cultural interpreters, other help-
ing professionals from their community, readings, and research. Mediators tend to view
conflict as something to be resolved. Members of the Florez family, however, have expe-
rienced ongoing racism. They believe that conflict of this sort needs to be confronted and
challenged. To them, resolution sounds as if they are being told to accept the status quo.
In terms of whom to involve in mediation, the mediator needs to identify how the fam-
ily members would identify the parties. This family views the affront to Raphael as a family
issue rather than an individual one. Accordingly, the mediator should consider involving
family members, not just Raphael (Sue, 2006). In some cases, conflict is viewed as a group
issue. The mediator may need to involve leaders or representatives of the group.
In terms of how to approach the conflict, the mediator needs to accommodate the
school and the family. In this case, the school prefers to deal with conflict through a ratio-
nal, structured dialogue. The family is accustomed to more open expression of emotion and
informal discussions. The family wants to have a public forum, whereas the school wants to
keep the process confidential.
Regarding developing an appropriate process, mediators have three primary
options: (1) Use their general model of practice, and try to be sensitive to the needs of

Mediation 275
275
people from different cultures within the general model; (2) adapt their model to meet
the specific needs of the specific cultures; or (3) create a new CR model by learning about
the means of CR used traditionally within the culture. For the last alternative, the media-
tor works in partnership with the culture to develop the culturally specific approach to CR
(LeBaron, 1997; Lederach, 1995). The process becomes more complicated when, as in the
present example, the parties come from different cultures.
In this case, the mediator begins by having separate meetings with the family and with
the school. This approach enables the mediator to explore their values and beliefs about
conflict and the way it should be resolved. The mediator learns that the parties share certain
values: Both want the conflict to be resolved, they are looking for a process that is fair, and
they define fairness as having a mediator who does not take sides. Where the mediator
identifies contradictory values or beliefs, the mediator will have to make tough choices.
Believing that it will be more difficult to engage the family, the mediator decides to tailor
some of the process to their needs. Also, the school is represented by teachers and the prin-
cipal, professionals who should be self- aware and willing to make accommodations for the
family. The mediator develops and proposes a hybrid process to the family and the school.
The mediation process is voluntary. Mediation only proceeds if both parties consent to the
process.
5. Skills
Culturally competent mediators adapt their use of skills to the needs of different groups.
This requires an understanding of the group’s norms of communication and CR styles
(Irving & Benjamin, 1995). The following mediator skills are particularly useful for situa-
tions where the parties’ culture is different from that of the mediator:
• Check out assumptions on meanings of terms and phrases.
• Present issues or ideas as they are perceived from the parties’ perspectives.
• Use short, clear sentences.
• Use concrete examples and specific language (Kirst- Ashman & Hull, 2015).
• Avoid idiomatic expressions, mixed messages, abstractions, or unfamiliar terms.
• Use appropriate self- disclosure to help build a positive working relationship.
• Indicate appreciation and respect for the dignity of the parties and the groups to which
they belong.
• Promote an environment that allows for sharing of selected (appropriate) cultural
information.
• Tolerate ambiguity.
• On making an interactive mistake, acknowledge it in a nondefensive manner (e.g., apolo-
gize, acknowledge your limitations, indicate your intent to learn how to avoid mistakes in
the future).
• Acknowledge differences in beliefs, values, and norms (Saunders, Haskins, & Vasquez,
2015).
• Make tentative suggestions (“I wonder if …”).
• Acknowledge interest in and unfamiliarity with the parties’ culture.
• Recognize that the parties know more than the mediator about their culture.
• Thank parties for helping the mediator understand the parties’ culture.
• Ask about the parties’ natural or informal support systems (including who is involved in
making different types of decisions).
Mediators can expect to invest considerable time in order to learn how to work effectively
with clients from a different culture. Fostering cultural competence is an ongoing journey

276 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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of developing knowledge, values, awareness, and skills through experience, feedback, read-
ing, and reflection (Saunders et al., 2015). Conflict occurs not only between the two par-
ties, but also between each party and the mediator. Mediators can make positive use of
conflict with the parties by modeling CR skills.
KEY POINTS
• The fundamental role of a mediator is to provide parties with support so they can negoti-
ate more effectively.
• Mediation can be provided by both professionals and nonprofessionals, although each
may operate on different assumptions about the nature of mediation and the appropriate
roles of a mediator.
• A professional’s choice of approaches to mediation depends on the professional’s value
base, agency mandate, professional role, client preferences, and how the mediator views
success.
• Settlement- focused mediators use a relatively directive process to encourage agree-
ment between parties, encouraging them to settle manifest conflict in an expeditious
manner.
• Interest- based mediators use a facilitative process to engage the parties in a joint problem-
solving process to help them resolve the conflict and their underlying interests in a mutu-
ally satisfactory manner.
• Therapeutic mediators assist parties with emotional and relational issues to help them
resolve conflicts and interact more effectively.
• Transformative mediators foster empowerment and recognition between the parties,
helping them change the way they deal with conflict.
• When selecting and implementing a model of mediation, mediators need to consider
the following issues: voluntary or coerced participation, neutrality, impartiality, fairness,
power imbalances, confidentiality, and definitions of successful mediation.
• Helping professionals can act as emergent or contractual mediators in a range of con-
texts, including family, mental health, cross- cultural, criminal justice, workplace, public
policy, and community conflicts.
• Mediation can be broken down into seven phases: preparation, orientation, storytell-
ing and issue definition, exploring interests and needs, negotiating and problem solving,
finalizing an agreement, and follow- up.
• To switch from one’s conventional helping role to the role of mediator, a helping profes-
sional needs to identify key differences in skills, strategies, values, and manners of inter-
action with clients.
• When working with people from different cultural backgrounds, mediators need to
decide whether to use a standard model of mediation, adapt their standard model, or
develop a culturally specific model.
• Cultural competence in mediation requires that mediators develop knowledge, values,
self- awareness, and skills to be able to work with people from specific cultural groups.
DISCUSSION QUESTIONS AND EXERCISES
1. MINDFULNESS AND MEDIATION: How can mindfulness (described in Chapter 1)
be used to help mediators act in a neutral or impartial manner? What are the connec-
tions between neutrality, nonjudgmentalism, awareness, and presence? Consider a
mediator who has an impulse to agree with one side or evaluate which option is best for

Mediation 27 7
277
the parties. How can meditation be used to help the mediator remain open to all stories
and opinions, without judging or identifying with one party?
2. MEDIATION SUCCESS: Identify a conflict situation in which you see yourself as a
potential mediator. As a mediator, what would your goals for mediation be in these
circumstances? Refer back to your answers to Exercise 2, “Negotiation Success,” in
Module II. Are there any differences between how you view success as a mediator and
success as a negotiator? Does it depend on the context of the conflict?
3. ISSUE DEFINITION: In a middle school conflict, Stephany accuses Barb of bullying
her, excluding her from participating in group projects and spreading rumors that she
has lice. She says Barb should be expelled from school. Barb denies all these allega-
tions, although she does believe Stephany is “ratched.” Barb claims Stephany is jeal-
ous because Barb was voted class president in a contest with Stephany. Barb suggests
Stephany would be a lot more popular if she stopped “ratting out” her classmates. As
a mediator, how might you identify issues in a manner that is positive, future focused,
unbiased, and invites both parties to problem- solve collaboratively.
4. MEDIATOR VALUES: As a mediator, what are your primary values? List your top
five in order of priority. Consider the following, but feel free to add your own: safety,
fairness, respect for all individuals, empowerment, neutrality, autonomy, access to
resources, harmony, change, privacy, competence, and mutual understanding.
5. IMPARTIALITY DILEMMA: You are facilitating a play therapy group for 6- year- olds
who have experienced physical abuse from their parents. During the third session, two
children start to fight over one of the puppets. You decide to use your mediative skills
to help them resolve this conflict. You encourage them to come up with their own deci-
sion rather than impose one on them. You are able to help them work toward a mutually
agreeable solution: Rip the puppet into small pieces so neither of them can fight over it any-
more. You personally find this solution troubling because it is violent and destructive.
Still, you have encouraged the children to develop their own solution. Do you support
their decision or direct them to a different type of solution? What factors do you con-
sider in making your decision?
6. ALTERNATIVE APPROACHES: This chapter introduces four approaches to media-
tion. There are many other models of mediation and mediation- like interventions—
for example, narrative mediation (Winslade & Monk, 2008); mediating dangerously
(Cloke, 2001); Milanese family mediation (Fong, 2005); Native North American
healing circles (Hamlin & Darling, 2012; tepung tawar in Sumatra, Indonesia (Alfitri
& Hambali, 2013); ho’oponopono in Hawaii (Dupree, 2012); and sulha in Arab com-
munities (Moore, 2014; Pely, 2011). Select one of these models. Conduct a literature
review on this model to identify its key assumptions, components, and strategies.
Compare this model to one of the approaches analyzed in this chapter.
7. CRITIQUING MEDIATION: Review the mediation case illustration between
Englebert and Elvis. Select one phase of the process. Identify the strengths and limi-
tations of how Medina handled this phase. What other issues, interests, options, and
alternatives could have been considered?
8. CONFIDENTIAL OR NONCONFIDENTIAL: The examples of an opening statement
and Agreement to Mediate in Elvis and Englebert’s case describe confidential mediation
(which some jurisdictions call closed mediation). In confidential mediation, information
from the mediation cannot be used for court or other purposes. The parties are agreeing
that the mediator and the mediator’s files cannot be subpoenaed. If the parties agree to
nonconfidential mediation (sometimes called open mediation), then either party can use
information from the mediation in other processes, particularly if the parties do not
come to a full agreement. In nonconfidential mediation, the mediator provides a
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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278 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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report at the end of the process, summarizing the issues, underlying interests, and final
offers or positions on the issues. The mediator does not provide recommendations.
The parties can give the report to a judge, arbitrator, or other professional who may
be hired to help them resolve their conflict. What are the advantages of confidential
mediation? What are the advantages of nonconfidential mediation?
9. CAUCUSING DILEMMA: Some mediators never meet individually with the parties.
Others meet with the parties individually to screen for safety issues, to help with power
balancing, or to help parties resolve an impasse. What happens if a party shares impor-
tant information with the mediator but refuses to allow the mediator to disclose it to
the other party? Under what circumstances should the mediator disclose the infor-
mation? When should the mediator keep the information confidential? How can the
mediator pre- empt this sort of dilemma (Menkel- Meadow et al., 2005)?
10. BALANCING ACT: Simon is a student at Conflictia High School. He recently suffered
a concussion and is having trouble with exams. Simon’s parents request accommoda-
tions because of his brain injury, but the teachers do not think he needs any. During
mediation between Simon’s parents and teachers, the mediator discovers the parents
are unaware of Simon’s rights and the school’s legal obligations for students with dis-
abilities. How could the mediator balance power by providing them with access to
needed information without losing her neutrality?
11. CONTRASTS: Earlier in the chapter, I provided a comparison between mediation,
social work, and law. To conduct a similar analysis, select an approach to media-
tion (e.g., transformative, narrative, or therapeutic) and a model of intervention
from your own profession (e.g., cognitive restructuring, solution- focused therapy,
strategic family therapy, structured family therapy, dialectical behavioral therapy,
radical social work, andragogy, restorative justice, Leininger’s transcultural nursing
model, or feminist counseling). Using a chart similar to that in Table III.1, compare
these two models in terms of their definitions, approaches, premises, roles, values
and ethics, focus, client– professional relationship, and structure. W hich roles, eth-
ics, premises, and so on, can you transfer from your original profession to media-
tion? W hat are the key changes you need to make when you undertake the role of a
mediator?
12. COMEDIATION: Comediation refers to mediation conducted by two or more media-
tors. Identify the advantages and disadvantages of comediation. Under what circum-
stances is comediation advisable?
13. DEAL WITH THE DEVIL: Andrew is addicted to alcohol. One evening, he finds
himself without cash or alcohol. Suffering from withdrawal symptoms, he screams out,
“I’d sell my soul for a 12- pack of beer.” Suddenly, the Devil appears. The Devil says, “I’ll
give you a six- pack for your soul.” They haggle back and forth but are unable to come
up with an agreement. They decide to hire you as their mediator. What ethical issues
are raised by this case? How would you handle them? What techniques could you use
to balance power between the parties?
14. CULTURAL VALUES DILEMMA: As a mediator, you respect your clients’ right to
self- determination and their cultural diversity. You also believe in cultural relativism.
Consider a case in which all the clients come from the same culture, but that culture is
different from your own. The conflict is a noise- related dispute between two couples
who live in adjacent apartments. During mediation, the husbands speak on behalf of
their wives, even though the primary conflict occurred between the women. According
to their culture, women are not permitted to speak directly with the mediator or with
men other than their husbands. You find this cultural norm to be discriminatory. How
do you reconcile your values and deal with this situation?
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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15. CULTURAL HETEROGENEITY: In Exercise 14, you are asked to consider clients
who “come from the same culture.” Although there are similarities between people
from the same culture, there are also differences (e.g., people from diverse subcultures,
people with different personalities, people with unique life experiences). Conversely,
there are often more similarities between people from different cultures than differ-
ences. How should a mediator use information about culture without falling into the
traps of stereotyping and overgeneralizing?
16. PEACEMAKING AND GENDER: Which gender attributes are more compatible
with the role of a mediator, male or female? Which male attributes are associated with
being a good mediator? Which female attributes might contribute to a woman’s ability
to act as a mediator (D. M. Kolb & Williams, 2003)?
17. REFRAMING: Reframing refers to looking at a situation from a different context or
perspective. Consider how a painting changes appearances when you change its frame
or how different people look if you view them face- to- face as opposed to from an aerial
view. To illustrate, consider the following illustration:
Count the number of squares. Write down the number of squares that you see. Ask
others in the class to do the same. Compare answers. If there are any differences, how
do you account for these? Is there only one right answer?
18. REFRAMING, THE SEQUEL: Reframing is a key skill in mediation. One method for
reframing is to restate what someone has said (a) to express it in positive terms, (b) to
eliminate blame or accusation, (c) to identify underlying concerns, fears, interests,
needs, values, or goals, or (d) to identify common ground. The following structures
can be used to implement this method:
• “You seem to feel …” (identifying an underlying concern or fear; showing you
understand how the person feels)
• “Both of you/ All of us …” (identifying a mutual interest, need, value, or goal)
• “Why don’t we …” (suggesting a problem- solving approach)
To be effective, the reframe must be genuine. If it does not ring true for the other person,
then that person is apt to reject the reframe. To practice reframing, try using these sugges-
tions to develop an appropriate response for each of the following scenarios.
Example: During mediation between Leo and Leona (two coworkers), Leona says,
“You’re a racist, male chauvinist pig.” How could the mediator reframe this in a more posi-
tive tone, without ignoring or minimizing Leona’s primary concerns?
Reframe: “Leona, I can hear that you’re quite angry with Leo. … [pause for response]
Both of you are planning on working for this company for a long time. Would both of you
agree that it’s important to develop a more respectful working relationship? [pause for
response] Perhaps we could talk about how to ensure that this is a safe and comfortable
place to work, regardless of one’s sex or ethnocultural background.”
a. In a divorce mediation where the primary residence of the children is in issue, one
parent tells the other, “You’re wrong. The children need to live with me.” How could
the mediator reframe this?
b. At a case conference, agency staff members are debating whether to admit a client
for services even though he is an undocumented alien. Agency policy suggests that
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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they only provide services to current citizens. One professional argues, “If we can’t
offer service to this client, then we might as well close up shop.” How could the
chair of the meeting reframe this?
c. A clinical supervisor is having a meeting with a client and a therapist. The client is
upset about how she has been treated by the therapist. The client yells, “Two thou-
sand therapists in this city, and I ended up with you!” How could the supervisor
reframe the client’s statement?
d. A mediator in a child protection case has a client who seems resistant to any kind
of help. The mediator wants to say, “If you’re not going to cooperate, then I really
can’t help you.” How could the mediator reframe this thought in a more positive
fashion?
e. A client barks to an intake worker, “What do you mean there’s a 6- month waiting
list?” How could the intake worker reframe this concern?
f. Two residents in a nursing home, Juan and Talina, are arguing over which show
to watch on the communal television. Juan says he has the remote control so he
gets to decide. Talina responds, “ W ho made you dictator?” How could a staff
member reframe this exchange and encourage the parties to focus on a mutual
concern?
g. A student who is concerned about getting a B on a test tells her professor, “I get A’s
in all my other classes.” How could the professor respond to this, using a reframe?
h. During a meeting of the Student Representative Council, one student says, “This
council is useless. You never get anything done.” How could the council president
respond, using a reframe?
19. REPACKAGING PROPOSALS FROM LOSS TO GAIN: According to the concept
of loss aversion, people often accept risks to avoid a loss, but avoid risks when faced with
a gain. Accordingly, people are more likely to risk going to court to avoid a loss but less
likely to go to court if they perceive a gain that they might lose in court. This means that
mediators can help parties accept an offer by repackaging offers that sound like losses
into gains (Dubler & Liebman, 2004). In other words, putting a positive spin on the
offer helps to make it more acceptable to the other party. Try repackaging the following
proposals from losses into gains.
Example:
ETHEL’S INITIAL PROPOSAL: Fred must turn off his stereo by 10 pm.
REPACKAGED: Fred may enjoy playing his stereo until 10 pm.
Proposals to be repackaged:
a. Matilda will sell the house and give half the proceeds of sale to Gus.
b. Estaban will give up his claim to compensation for emotional pain if NotoCorp
gives him his job back.
c. As punishment for breaching confidentiality rules under the Conflictian
Psychotherapy Association’s Code of Ethics, Sabrina agrees not to practice psycho-
therapy for 2 years.
20. MEMORANDUM OF UNDERSTANDING: Consider the following memorandum
of understanding, written by a mediator in a case between a mental health patient and
a long- term care facility:
The parties of the first part and of the second part hereby agree that Mr. Paul
Paterson will stop harassing the nursing staff by calling them in the middle of the
night for trivial matters. If Mr. Paterson continues this immature behavior, he will
be immediately discharged from the Shady Firs Residence. The residence accepts
no responsibility for Mr. Paterson’s welfare should the Residence need to discharge
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Mediation 281
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Mr. Paterson. The mediator will determine any future disputes so there will be no
further fighting.
Critique this memorandum (identifying its strengths and limitations) according to the fol-
lowing criteria: clear, plain language; balanced and impartial; future focused; nonjudgmen-
tal; and sufficient detail so parties know what is expected of each. Rewrite the memorandum
in a way that deals with the limitations you have identified. Feel free to use your creativity.
ROLE- PL AYS: GENERAL INSTRUCTIONS
The following role- play exercises are designed to help you practice each phase of the media-
tion process. Each of the first seven role- play descriptions includes an inventory of skills
and activities that fit with the particular phase of mediation.24 You will use different skills
or emphasize them in different ways, depending on the approach to mediation that you are
using. For learning purposes, select an approach that you want to learn and then identify
the skills and activities that you want to focus on. When you are mediating with real clients,
your choice of approaches, skills, and activities will depend on your agency mandate, the
dynamics between the parties, the issues to be resolved, the wishes of the parties, and how
you and the parties define success.
These inventories can also be used as a checklist for professional development and self-
evaluation purposes.25 Mark “C” for each area of competence and “W ” for each area requir-
ing more work. Use the exercises in this course to practice the W ’s. If you are using these
inventories to give others feedback on their mediation skills, identify positive examples of
how they used different skills. For areas where they could use help, suggest alternatives that
you might have tried.
The reason that each of the following mediation role- plays focus on a distinct phase is
to facilitate learning. As you are learning new skills, it is easier to try to master the process
one phase at a time. In practice, experienced mediators will not follow the phases in a linear
fashion. There are many overlaps between phases and the skills required for various phases.
Assessment of power and safety issues, for instance, occurs on an ongoing basis. In addi-
tion, mediators often circle back and forth between phases. If parties seem to be getting
stuck at one phase, the mediator may loop back to an earlier phase or jump ahead to a later
phase. As you become more familiar with the various components of mediation, you will
learn to integrate them more flexibly.
ROLE- PL AY MIII.1: “BOUNDARY CONFLICT”—
PREPARATION PHASE
Mary- Hanna is a mental health counselor who has been providing psychotherapy to
Phinea (19 years old), a university student who has been seeking assistance for help with
social anxiety issues. As part of the intervention plan, Mary- Hanna has been giving Phinea
therapeutic massages to help her relax. When Phinea’s father, Fred, discovers that Mary-
Hanna was “groping” his daughter during so- called therapy, he goes ballistic. He calls
Mary- Hanna, threatening to sue her for malpractice, specifically for violating professional
standards related to appropriate physical touch, sexual relations with clients, professional
24 The skills in the inventories are drawn from the following resources: English and Neilson (2004); S. Goldberg
and Shaw (2007); Irving and Benjamin (2002/ 2012); Lewicki et al. (2010); and Moore (2014).
25 For competencies specific to family mediation, see Chapter 8.

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competence, and dual relationships. Fred says he wants $500,000 in compensation and an
order banning Mary- Hanna from practicing psychotherapy ever again. Mary- Hanna con-
tacts her attorney, Amanda, for advice on how to handle this situation. Amanda suggests
that they try mediation to keep this matter private and to prevent this case from going to
court. Initially, Fred says he does not trust mediation. He suggests they would be better to
go to court. Phinea says she likes Mary- Hanna and does not want make trouble for her. Fred
suggests they talk to Malcolm, a mediator who specializes in malpractice cases. Fred and
Phinea agree to speak with Malcolm to learn more about mediation. They remain uncertain
about actually participating in mediation.
For this preparation phase role- play, Malcolm will meet jointly with Phinea and Fred.
Malcolm should select three or four items from the following inventory to focus on for this
role- play (Box III.2). Also, Michael should identify whether to offer SFM or IBM, so he can
answer any questions about mediation that the parties or their attorneys may ask.
BOX III.2
INVENTORY OF SKILLS AND ACTIVITIES FOR
THE PREPARATION PHASE
1. Receives referral
2. Makes contact with the parties
3. screens for safety issues and appropriateness for mediation
4. If situation not appropriate for mediation, explores alternatives and develops
safety plan, if needed
5. Decides whether to meet individually with parties first (for further screening, to
allow parties to ventilate in privacy, to help prepare them for negotiation, etc.)
6. Arranges for interaction between the parties (together, shuttle mediation,26 use of
telephone, or other distance technologies)
7. Chooses and arranges the meeting space/ environment conducive to mediation
(quiet, neutral, comfortable, soothing, fun, creative, spiritual)
8. ensures that parties have access to legal advice, particularly where the decisions to
be made have significant legal consequences
9. speaks with lawyers or other parties who may have an influence over decision
making, with permission of the parties (to explain mediation and obtain their
support for the process)
10. obtains agreement about who will participate in mediation
11. provides parties with written information explaining mediation (e.g., brochure,
Agreement to Mediate, website)
12. Builds parties’ confidence in the mediation process
26 Shuttle mediation refers to meeting with the parties individually and shuttling between them. The two par-
ties could be in separate rooms at the same time, with the mediator moving back and forth between them.
Alternatively, the mediator could meet with the parties at separate times. Shuttle mediation may be used
when there are safety issues, when the parties refuse to meet face- to- face, or where slowing down the pro-
cess is needed to help the parties to cool off.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Mediation 283
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Debriefing : Which preparation phase skills and activities did Malcolm use most effectively?
What challenges did Malcolm face when meeting with Phinea and Fred? How did he try to handle
them? Given the information that Malcolm gathered in the role- play, is mediation appropriate for
these clients? If yes, what does Malcolm need to do (if anything) to ensure that mediation is safe
and fair? If no, why is mediation inappropriate?
ROLE- PL AY MIII.2: “PARKING PERIL S”— ORIENTATION
TO MEDIATION
Victor (Victoria) is a volunteer mediator for a community dispute resolution program in
Conflictia. A police officer, Sgt. Pullitzer, has referred two neighbors— Nora and Nelly— to
mediation in order to resolve their “parking feud.” Over the past month, Nora has called the
police on six occasions to complain that Nelly was parking in front of Nora’s driveway. Nelly
claims Nora lets the air out of her tires if she parks within 12 feet of her driveway. For this
role- play, Victor will meet Nelly and Nora for the first mediation session. Assume Victor
had no prior contact with the parties.
To prepare, Victor should plan an opening statement using some of the topics identi-
fied in the inventory shown in Box III.3. He could create crib notes to ensure that he covers
the key points, but he should not read a script. The opening statement should reflect one
particular approach to mediation (e.g., interest- based, settlement focused, or whichever
approach that the person playing Victor wants to learn). Victor should ensure eye contact
with both parties and remain flexible, answering questions of the parties that may arise.
Nora and Nelly should be relatively cooperative with Victor. Periodically, one or the other
could interrupt by asking naïve or pointed questions (e.g., “What type of meditation do you
practice?” “What happens if I need to go to the restroom?” “When are you going to decide
who is right and who is wrong?” “How do I know you’re not going to side with her?”). The
main learning goal for this role- play, however, is for the mediator to become comfortable
with the orientation phase of mediation. Do not go into storytelling or problem solving.
BOX III.3
INVENTORY OF SKILLS AND ACTIVITIES FOR
THE ORIENTATION PHASE
1. Engages parties and introduces mediation process:
• puts clients at ease (welcomes, introduces self and parties, reassures, attends to
potential sources of anxiety)
• fosters rapport and trust with clients (demonstrates genuineness, uncondi-
tional positive regard, empathic understanding, patience, impartiality, concern,
optimism, and active listening skills)
• explains the mediation process (clarifies the structure, purposes, how media-
tion differs from court or therapy, role of mediator, mediator credentials, role of
the parties, and what happens if a tentative agreement is reached or not reached)
• Asserts control over process while also emphasizing the parties’ responsibility
for decision making
• Identifies timing (beginning, duration, possibility of future meetings)
2. Describes standards of practice in terms understandable to parties:
• Neutrality or impartiality
• Confidentiality and exceptions

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• Communication with parties, their lawyers, or other parties
• use of caucusing (meeting individually with parties during mediation)
• safety issues
• Voluntary involvement (including ability to withdraw or terminate)
3. Obtains parties’ agreement and commitment to mediation:
• Clarifies the terms of the Agreement to Mediate (the retainer or contract for the
mediator’s services, including fees or how mediator will be paid)
• Develops ground rules or process guidelines with the parties (e.g., being open
and honest, one person speaks at a time, use of notes, use of respectful lan-
guage, no smoking, protocol for calling breaks, phones off during sessions, and
other terms that the parties agree on)
• encourages informed commitment to the process (including commitment of
time, effort, and good faith)
• Responds to questions about the mediation process and agreement
• Reaches agreement to mediate (written or oral agreement)
• Congratulates or thanks the parties on their decision to commit to the process
4. Assesses:
• screens candidates for suitability— readiness, balance of power, safety, ability to
negotiate fairly (considering impact of any mental illness, substance abuse, etc.)
• Assesses power dynamics between parties and possible need for power
balancing
• Assesses cultural factors that may affect the process: values, preferred ways of
dealing with conflict, traditions related to the subject of the conflict
• Determines need for further premediation interventions (if any)
• Identifies motivations of parties for mediating (e.g., hopes, mutual interests, fears)
• obtains preliminary information about presenting problem (may do this at
beginning or toward end of this phase)
• Assesses the nature of the conflict (e.g., difference of understandings, ideolo-
gies, or interests; miscommunication)
5. Prepares parties for how to negotiate effectively during mediation:
• Coaches parties (e.g., how to be flexible on interests, how to manage emotions,
and how to think creatively)
• encourages positive expectations of the mediation process
• frames conflict as a problem to be solved
• empowers clients (e.g., supporting their negotiating skills, giving each a fair
opportunity to speak, reinforcing their strengths)
• Clarifies the agenda, and invites parties to commit to it
6. Elicits and manages concerns of the parties
• Invites feedback from the parties (doubts, questions, suggestions)
• If a party expresses reluctance to mediate, explores why (in joint session or in
caucus)
• If parties do not agree to mediate, explores alternatives with parties and rein-
forces that the parties are in the best position to decide on how to proceed
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Debriefing : Which orientation skills and topics did Victor (Victoria) demonstrate well? Give
examples of what he or she said. What challenges arose in the orientation phase? How did the
mediator handle these challenges?
ROLE- PL AY MIII.3: “MUTUALLY NOISY NEIGHBORS”—
STORY TELLING AND ISSUE DEFINITION
This role- play involves a community mediator, Coco, and two neighbors, Ms. Juliette
Thibault and Mr. Omar. In the 2 months since Ms. Thibault moved into the apartment unit
directly above Mr. Omar’s, they have been embroiled in a bitter dispute. Mr. Omar is a 78-
year- old widower who has lived in his apartment for more than 20 years. Ms. Thibault is a
22- year- old university student. She has made several complaints to Mr. Omar about the
noise coming from his apartment. Mr. Omar has a hearing impairment. He raises the vol-
ume on his TV or radio to be able to hear them. Mr. Omar likes to go to bed early and wake
up early. Mr. Omar keeps the TV or radio on all the time because he likes the company; also,
it is his only way of keeping up with what’s going on in the community.
Ms. Thibault is away at school during the afternoon, but she likes to work at home in
the morning and in the evening. She finds it difficult to study with Mr. Omar’s noise, but
she needs to work at home because that is where her computer and her books are. She is
also awakened early (about 5:30 am) when Mr. Omar gets up and turns on the radio. Ms.
Thibault has told Mr. Omar about the problem several times, but he continues to leave the
volumes at the same levels. In frustration, Ms. Thibault has begun to respond by playing
heavy metal at blaring levels or by stamping on her parquet floors. When this happens,
Mr. Omar just raises the volume of his TV or radio. With the escalating noise war, other
neighbors have complained to the building manager, Manny. Manny has told Mr. Omar
and Ms. Thibault to get together to work it out themselves. Management does not want to
hear any more problems from either of them. Ms. Thibault and Mr. Omar agree to go to the
Conflictia Mediation Center, on neutral ground, to try to work out a solution.
This case can be role- played using a variety of negotiation styles: hard, soft, positional,
chicken, compromising, tit- for- tat, interest based. Mr. Omar and Ms. Thibault should each
select a style and not disclose it to the others. In preparing for the role- play, they should write
down examples of tactics and strategies they will use in playing their designated negotiation
style (refer back to Chapter 1 for conflict styles and to Module II for approaches to negotiation).
The main purpose of this role- play is to give the person playing the mediator practice
at the storytelling and issue definition phase of the mediation process. Coco should select
an approach to mediation (settlement- focused or interest- based) and use the inventory
in Box III.4 to prepare for this role- play. Assume that Coco has introduced the parties to
mediation. She will move onto the issue definition phase with a statement such as “Now
that everyone has agreed to mediate, let’s begin by hearing what brings you to mediation
and what you want to accomplish here.”
BOX III.4
INVENTORY OF SKILLS AND ACTIVITIES FOR
THE STORYTELLING AND ISSUE DEFINITION PHASE
1. Facilitates storytelling and listening:
• provides rationale for “who goes first”
• Allows each party the opportunity to his or her story (encouraging them to
focus on concerns and required background information, rather than posi-
tions or options for solution)

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Debriefing : What issues did the mediator discern from this session? What were each party’s
original positions on each issue? Identify three strengths of the mediator’s performance, using the
inventory for the storytelling and issue definition phase. Identify one additional skill or activity
that the mediator could have demonstrated.
Role- Play MIII.4: “Fractious Team”— Exploring Interests and Needs
This is a role- play between Norman (a nurse), Sonia (a social worker), and Penelope (a psy-
chologist who will assume the role of an emergent mediator). These three professionals work
on a specialized, interdisciplinary team at Conflictia Hope Hospital. The team provides assess-
ments and supportive interventions for children who are suspected of having been sexually
abused. Norman and Sonia personally cannot stand one another. Norman sees Sonia as arro-
gant, uncooperative, and indecisive. Sonia sees Norman as petty and backstabbing. Recently,
they returned a child (Chelsey) home with her parents. Chelsey was abused further. Norman
told administration that he had nothing to do with the case, laying blame at Sonia’s feet. During
a case conference regarding another family (the Farqhuars), Norman and Sonia start arguing
about Chelsey’s case. Penelope gets caught in the crossfire and tries to use her mediative skills.
Because Penelope is not a contractual mediator, there is no formal introduction or
Agreement to Mediate. The parties should begin the role- play with Norman and Sonia
arguing about who is at fault. The focus of this role- play is to explore the parties’ interests
• Allows parties to ventilate feelings and express concerns
• puts appropriate limits on storytelling and expression of feelings
• helps parties communicate through use of clarification questions
• Assures each party hears and understands the others (e.g., encourages each party
to use active listening skills to reflect back or summarize what the other has said;
helps parties with language to validate each other’s needs and views as legiti-
mate, even if they do not agree; makes constructive use of silence and pacing)
• If a party seems surprised about information provided by another party, explores
how this new information changes the first party’s understanding of past events
2. Helps parties develop agenda:
• Identifies, clarifies, and summarizes interests of each party, including
relationship issues
• Identifies areas of agreement and mutual interest (reinforces ability to agree)
• Develops a list of concerns that is balanced, exhaustive, and clear
• Conducts own analysis of underlying concerns
• obtains consensus about how to proceed (priorities of parties; order of issues
to be addressed— e.g., by most important, least important, most urgent, easiest,
or most difficult first)
3. Continues to build trust with parties:
• Responds appropriately to different conflict styles
• Validates identity and role of each party
• Avoids taking sides (e.g., uses neutral statements to demonstrate active listening)
• Invites each party to check assumptions

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and needs, not to do any problem solving or to bring the parties to agreement. The person
playing Penelope should use the inventory in Box III.5 to prepare for this role- play. Focus
on practicing just three or four skills at a time.
Debriefing : What challenges did the mediator face in this role- play? Which skills did the
mediator use to deal with these? What were the parties’ original positions, and what underlying
interests and needs did the mediator help the parties identify?
BOX III.5
INVENTORY OF SKILLS AND ACTIVITIES FOR
THE EXPLORING INTERESTS AND NEEDS PHASE
1. Helps parties develop insight about their feelings and interests:
• Asks parties to identify feelings around their own issues
• Achieves understanding or closure on relevant feelings
• Asks parties to identify their perceptions of the other’s feelings around the
issues in conflict (facilitates recognition)
• helps parties explore underlying interests and needs
• helps parties explore their self- images and how these contribute to the conflict
and its possible resolution
• uses metaphoric storytelling to produce insights into the conflict (see Appendix 3)
2. Fosters open communication:
• Asks clear, open- ended, and relevant questions
• Reflects feelings (validates emotions)
• encourages parties to share relevant information
• provides opportunities for parties to check the accuracy and reliability of shared
information
• Maintains safe environment for clients
• Maintains appropriate level of control over emotional climate (e.g., exhibiting
relaxation through body language, calling for a breather, exploring immediacy,
using humor)
3. Helps parties maintain focus:
• partializes issues
• Keeps parties focused on one issue at a time
• Maintaining problem- solving focus
• Maintains control over disruptive behavior
• establishes priorities with parties
4. Balances power (if needed):
• ensures that parties have access to significant information
• facilitates access to needed support (e.g., legal advice, moral support, technical
advice)
• establishes and enforces guidelines to ensure that both parties have equal say
and participation
• uses caucusing to help parties negotiate more effectively
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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ROLE- PL AY MIII.5: “SEQUEL S”— NEGO TIATION
AND PROBLEM SOLVING
For this role- play, use the fact situation from one of the previous three role- plays. The media-
tor should conduct a brief introduction and allow the parties to tell their stories. The parties
should be cooperative up to this phase, so this role- play can focus on negotiation and problem
solving. Box III.6 provides an inventory of facilitative and interest- based strategies that you
can use to assist with this problem- solving stage. Box III.7 provides a list of settlement- focused
and evaluative strategies. As you work on developing your skills, focus on three or four skills
from either inventory. Many mediators use a blend of facilitative and settlement focused skills.
Some mediators strive to use facilitative skills to empower the parties as much as possible;
they want to avoid having the parties feel that they are being pressured into agreement.
BOX III.6
INVENTORY OF FACILITATIVE AND INTEREST- BASED
SKILLS AND ACTIVITIES FOR THE NEGOTIATION AND
PROBLEM- SOLVING PHASE
1. Structures mediation process to facilitate problem solving:
• Clarifies the goal or purpose of coming to an agreement (including how this
empowers clients to take control over their own decisions and lives)
• provides structure for problem solving
• Moves from broad principles (where parties can more easily agree) to more spe-
cific topics
• facilitates brainstorming (generation of options) for each issue
• helps parties weigh pros and cons of options in relation to their underlying interests
• helps parties develop objective criteria for deciding between options
2. Encourages constructive problem- solving behaviors:
• educates the parties about constructive negotiation skills and interest- based
negotiation strategies
• focuses the parties on the future, rather than the past
• focuses on one issue at a time (or a manageable number of related issues)
• promotes cooperation (e.g., praises constructive negotiation behavior)
3. Pre- empts or corrects counterproductive negotiation behavior:
• helps parties reframe statements that are negative, self- centered, past focused,
judgmental, or positional into perspectives that are more positive, mutually accept-
able, future focused, nonjudgmental, and interest- based (offering alternative ways
of looking at issues rather than trying to impose perspectives on the parties)
• helps parties see the negative impact of using disrespectful language or hid-
ing information, and the positive impact of demonstrating respect and sharing
relevant information
• If parties express judgmental statements, helps them see one another in a more
positive frame of reference
• Identifies the function or effect of parties’ behaviors or attitudes on negotiation
• helps parties separate personality issues from the substance of the negotiations
• explores cultural differences and misunderstandings
• Adapts language and behaviors to fit with culture(s) of parties

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• explores power dynamics and concerns for fairness
• explores how relationship issues may be having an impact on joint problem solving
4. Paces problem- solving process appropriately:
• Avoids imposing mediator solutions
• Avoids moving to solutions prematurely
• Maintains appropriate control over process— allows greater control to the par-
ties as they begin to work more collaboratively
• Allows all interests of the parties to be discussed
• Remains calm, optimistic, and persistent
5. Stimulates creative problem solving:
• uses decision trees, charts, notes, or other visual aids
• encourages parties to use lateral thinking (viewing problems from different
angles to try to come up with innovative solutions)
• links the parties with outside experts or resources to help enlarge their per-
ceived option set
• focuses parties on overarching principles, visions, or values before considering
specific solutions
6. Facilitates access to information:
• helps parties identify information that needs to be produced
• supplies and filters missing information, or seeks agreement on how parties
will obtain it for themselves
• If parties have forgotten issues raised earlier, gives parties an opportunity to
put them back on the table
• suggests homework tasks for parties to perform between sessions
7. Helps parties consider different perspectives:
• Recognizes or legitimizes the rights of others to be involved in the process,
where appropriate
• helps one party package a proposal in terms that the other is more likely to accept
• Brings others into the mediation process to contribute to agreement
• Asks parties to consider possible changes in future circumstances
• Invites parties to consider the interests of parties affected who may not be at
the mediation table
8. Helps parties resolve impasse by:
• Caucusing (meeting individually with both parties to explore possible blockages
to moving forward and ways to resolve them, to allow ventilation of feelings, to
encourage candor, to correct unproductive behaviors, to reality test, or to deal
with power imbalances without losing parties’ faith in mediator’s neutrality)
• encouraging parties to remain at the table
• helping parties refine a promising option to make it more acceptable to both parties
• helping parties save face (preserve honor) or undo a commitment
• listening carefully to what is happening in the moment and improvising in
a manner that motivates the parties to move forward, or even laterally (e.g.,
saying something for shock value, surfacing unspoken feelings, reaching into
a negative and extracting a positive, or reversing ground rules such as “one per-
son speaks at a time” or “everyone speaks respectfully”)
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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BOX III.7
INVENTORY OF SETTLEMENT- FOCUSED
AND EVALUATIVE SKILLS AND ACTIVITIES FOR
THE NEGOTIATION AND PROBLEM- SOLVING PHASE
1. Focuses negotiations on the bargaining range determined by the initial
offers:
• elicits offers and counteroffers
• helps parties evaluate the pros and cons of offers made
• Narrows issues in dispute
2. Encourages or proposes possible concessions
• points out positives of particular option or concession
• Rewards party concessions
• takes responsibility for concessions (helping parties save face)
• Notes lack of progress and expresses concern
• offers substantive suggestions and proposals (without losing neutrality)
3. Helps parties re- evaluate expectations, reduce unrealistic aspirations, and
focus on a reasonable settlement:
• Asks reality testing questions (raises doubts; facilitates insights about what is
realistic)
• evaluates pros and cons of each parties’ last offer
• evaluates and candidly presents how a court or other objective third party
would decide the issues
• uses gentle persuasion
• presents laws or other objective information
• engages parties in role reversals (“If you were the other party, what might be
your bottom line?”)
• helps parties consider hypothetical situations (“If you make a concession, how
do you think the other party will respond?”)
• uses constructive confrontation (e.g., helps a party to identify incongruencies
between two pieces of information the party has given, or between a statement
and the party’s behavior)
• helps parties do a cost- benefit analysis of nonagreement to persuade par-
ties to try to settle case in mediation (e.g., “What is the best alternative to
a mediated agreement [BAtMA], and what can you expect in terms of costs
in time, money, and aggravation, to yourselves and others affected by this
conflict?” “What are the risks and benefits of terminating mediation without
agreement?”)
• Increases costs of nonagreement through sanctions (e.g., issues warning that
lack of cooperation will result in a negative report to court or public27)
27 This example could be used in nonconfidential mediation.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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To compare and contrast SFM and IBM, you could assign different approaches to dif-
ferent people who will play mediator in each successive role- play.
In addition to the skills that can be used to advance the mediation process, mediators
should also consider what types of behaviors to avoid. Dysfunctional mediator behaviors
are mediator responses that impede effective mediation. Many of these are the inverse or
opposite of the positive skills and activities described in Boxes III.6 and III.7. For example,
if “allowing all parties to discuss their interests” contributes to the process, then “failing to
provide all parties with an opportunity to discuss their interests” impedes the process. The
list in Box III.8 identifies dysfunctional behaviors to avoid. During the role- plays, observers
should watch for the use of any of these dysfunctional skills. When debriefing, remember
to provide constructive feedback in a respectful, behavior- based manner.
BOX III.8
DYSFUNCTIONAL MEDIATION SKILLS
1. Demonstrates bias to one party
2. focuses on own interests, values, or feelings, rather than the parties’
3. follows agenda too rigidly, ignoring what is going on for the parties
4. lacks structure, direction, or strategies to move parties toward shared understand-
ings or agreements (e.g., does little but carry messages between parties)
5. Allows assumptions and misunderstandings to go unchecked
6. Allows threats or blaming
7. uses inflammatory or disrespectful language
8. shares confidential information without permission
9. lacks genuineness (sounds artificial or disinterested)
10. exhibits lack of confidence (in self as mediator or in mediation process)
11. Is unprepared (does not know relevant laws, background information, or process issues)
12. Judges or blames parties for their role in the conflict
13. glosses over serious problems to try to reach settlement
14. Denies opportunity for parties to discuss feelings
15. Mismanages information provided by the parties
16. leads parties into a settlement that pleases the mediator
17. pressures parties into agreement
18. tries to solve problems for the clients
19. Ignores cultural and other diversity factors that may affect client interactions
20. Moves parties through phases too quickly
21. Allows one party to take control of the process
22. Becomes defensive when challenged by a client
23. Assumes a nonmediator role (e.g., crosses boundary into therapy, law, advocacy, etc.)
24. Asserts own reality rather than allowing parties to express their own realities
25. Misjudges parties’ true concerns or nature of conflict28
28 See S. Goldberg and Shaw (2007) for examples of dysfunctional behaviors reported by advocates involved
in actual mediations.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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29 See http:// www.americanbar.org/ content/ dam/ aba/ migrated/ 2011_ build/ dispute_ resolution/ resolu-
tion2002.authcheckdam for the American Bar Association’s policy on whether drafting an agreement
constitutes “unauthorized practice of law.”
BOX III.9
INVENTORY OF SKILLS AND ACTIVITIES FOR
THE “FINALIZING AN AGREEMENT” PHASE
1. Uses appropriate language in the agreement or memorandum of understanding:
• oral or written (as appropriate for the case)
• plain language (rather than legalese or professional jargon)
• Impartial, balanced, and mutual
• Comprehensive, clear, and concise
• future focused (rather than reviewing past or assigning blame)
2. Tests agreement to ensure that it is realistic and both parties can follow
through:
• explores whether the parties view the agreement as practical, fair, enforceable,
and something they can live with over the long term?
• explores how the parties will manage contingencies (including possibility of
future disagreements)
• Clarifies the roles and obligations of each party (the agreement explains who is
responsible for doing what, when, and how, and what happens if one or both
do not fulfill their obligations under the agreement)
• ensures commitment (e.g., do they fully understand the agreement and its
implications, do they accept responsibility for making the agreement work?)
• explores doubts expressed by either party
3. Deals with how the tentative agreement will be finalized:
• helps parties determine whether to pursue a legally binding agreement drafted
by lawyers and signed by parties,29 court order on consent of parties, informal
letter (memorandum of understanding) rather than legally binding agreement,
or confirmed as an oral agreement based on the parties’ good faith
• ensures access to independent legal advice
Debriefing : Which skills and strategies did the mediator use effectively? What were the key
differences in the process when different people used different approaches to mediation? Which
approach seems most appropriate for this situation, and why? Which dysfunctional behaviors, if
any, did the mediator demonstrate?
ROLE- PL AY MIII.6: FINALIZING AN AGREEMENT
Building on the scenario that you used in Role- Play MIII.5, use this role- play to practice
finalizing an agreement. The mediator should prepare by identifying three or four skills to
focus on from Box III.9. If the parties did not reach agreement in your prior role- play, you
could focus on the skills in Point 6 for how to end mediation when the parties do not reach
agreement. Alternatively, you could work out a tentative agreement before you begin this
role- play, so you can focus this exercise on finalizing the agreement.

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Debriefing : What decisions did the parties make relating to whether the agreement was oral or
written, and submitted to court, lawyers, or neither? What are the pros and cons of how they final-
ized the agreement? Which skills did the mediator use most effectively for this phase?
ROLE- PL AY MIII.7: FOLL OW- UP
Using the scenario that you used in Role- Play MIII.6, prepare for a follow- up con-
tact, as per the skills and activities in Box III.10. Select a method for soliciting feedback
4. Helps parties plan for implementation and follow- up:
• summarizes the mediation process and reviews the agreement
• helps parties identify who is responsible for doing what, when, where, and how
• helps parties devise ways to monitor performance and enforce the agreements
(defining terms of implementation, evaluation, follow- up, and review, includ-
ing sanctions or other provisions that take effect if certain terms are broken)
5. Reinforces the parties’ efforts and decisions:
• ends on a positive note, encourages parties to shake hands, facilitates having a
meal or drink together, or engages the clients in some other some other closing
ritual (e.g., exchange of gifts or another symbolic gesture of camaraderie)
6. If full agreement is not reached, prepares parties for next steps:
• summarizes areas of agreement and disagreement
• explores possible alternatives for resolution of outstanding issues
• explores parties’ feelings and frustrations
• links parties to desired resources
• Reinforces parties’ efforts and successes (e.g., improvements in communica-
tion, understandings, relationships, and narrowing differences)
• offers opportunity to return to mediation at future date
BOX III.10
INVENTORY OF SKILLS AND ACTIVITIES FOR
THE FOLLOW- UP PHASE
1. Contacts the parties (by mediator or other person; sets up face- to- face meeting,
conducts the interview by telephone, or asks for feedback via mail, website, or other
online communication)
2. solicits feedback (structured interview for quantitative or qualitative research, eval-
uation form, survey, or open- ended dialogue)
3. provides mediation reviews at specific time intervals (e.g., to look at short- term or
trial agreements, to consider longer- term arrangements, to consider progress and
problems since finalizing the agreement, to assist parties with ongoing implemen-
tation of the agreement)
4. Reinforces positive performance and outcomes
5. offers additional services

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(e.g., a structured telephone interview with one party or an open- ended, face- to- face meet-
ing with both parties together). Make sure your methods of soliciting feedback and your
use of skills fit with the approach to mediation that you used in the prior role- plays (e.g., an
interest- based mediator would ask for feedback on how well their underlying interests were
satisfied, rather than simply whether their agreement was implemented or whether they
avoided court).
Debriefing : What were the main issues that arose during follow- up? Which skills did the
mediator use to handle these? Critique the overall effectiveness of this role- play, focusing on the
mediator’s strengths and the degree to which the parties achieved the primary goals of the particu-
lar approach to mediation. Give specific examples.
ROLE- PL AY MIII.8: FOUR CASES OF EMERGENT MEDIATION
The following cases involve emergent mediation. For each case, identify the issues in dis-
pute and the nature of the conflict. What challenges do they pose for the third party? What
strategies would you use to deal with them? Would it be appropriate for you to act as an
emergent mediator? If so, what would you need to do to improve the chances that the
parties accept you as a mediator? Try role- playing these situations from beginning to end
(about 3 to 6 minutes per role- play, plus preparation and debriefing).
a. Family Feud
Richard and Jane are adult siblings who come from a family that deals with conflict by slam-
ming doors, screaming, or throwing things. Frances is their longtime friend. During din-
ner at a restaurant, Richard and Jane start to argue about who is going to pick up the tab.
Frances feels caught in the middle. She feels embarrassed about making a scene and offers
to pay the bill. Jane says, “No way! It’s Richard’s turn. Don’t let him walk all over you.”
Richard replies to Jane, “You’re full of it! You’re the one who’s always bragging about how
much money you make!” As a friend, what strategies should Frances use to help mediate
the dispute? Try role- playing this situation.
Debriefing : Which strategies did Frances use? How effective were each of these? Were the
parties ready for Frances’s help? How could Frances assess whether she should intervene? If
Frances were Jane and Richard’s counselor rather than their friend, how would she help them
with this conflict? How would a counseling role be similar to that of the friend? How would it
be different?
b. Crabby Coworkers
Bea and Jay work as receptionists in Diversity Plus. Jay always complains that Bea is late,
takes long lunches, and leaves early. Jay thinks Bea is lazy and is taking advantage of Jay’s
good nature. Bea has a number of excuses— having to drop off and pick up the kids at day-
care, needing time to do the shopping, and being tired from working too hard. In addition,
Bea says that she’s more efficient than Jay and makes up for the time off. Jay finally can’t put
up with Bea and goes to Orville (the office manager) to “fire Bea and get someone com-
petent.” Because of Bea’s seniority and position, Orville is reluctant to fire Bea and would
prefer to work it out amicably. Also, Jay is not responsible for deciding who to hire or who
to fire. Orville has arranged for a meeting with both of them.
Debriefing : What challenges did Orville face in this situation? How did he handle them?
What issues can Orville be neutral about and what are the limits of his ability to be neutral? Is
emergent mediation an appropriate role for Orville? Why or why not?

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c. Gossipy Group
Ashley and Gerry are members of a recreational softball team. Cayla is team captain. In
recent weeks, Ashley has been saying that Gerry is having an affair with “an old cougar
named Millicent.” The team is on the playing field. Gerry has just caught wind of this story
from the shortstop. He decides to throw the next ball that comes his way at Ashley’s head.
Gerry has a bad arm, so the ball misses Ashley. The two start cursing and threatening each
other. As captain, Cayla intervenes and leads them into the locker room to “talk it out.”
Debriefing : Which mediation strategies did Cayla use, and how did the parties respond to
these? What are the advantages or disadvantages of Cayla using a combination of authority and
mediation in helping Gerry and Ashley? Contrast this softball team scenario with a group of
social workers, nurses, psychologists, and doctors who worked together in a hospital. How are the
roles of baseball team captain and interdisciplinary team leader similar regarding conflict man-
agement roles? How are they different?
d. Catch- 22 Couple
Fanya is a family therapist who has been seeing Andy and Michelle over the past 3 months
for couples counseling. Andy and Michelle are trying to decide what to do for their fifth
anniversary. Andy wants them to go on a nostalgic trip back to their birthplace, Bohemia,
where they also met and married. Michelle wants to throw a big party here in Conflictia.
They do not have the time or money to do both. They come to Fanya, their trusted therapist
and friend, to tell them what to do or where to go. If Fanya sides with one, she will offend
the other. If Fanya gives them a third option, they will both get angry with her. If Fanya
refuses to help, then they’ll think Fanya is “a wuss.”30 Role- play this with Fanya choosing to
help as an emergent mediator.
Debriefing : How did Fanya handle Andy and Michelle’s request to tell them where to go?
What were the risks for Fanya, as a therapist, in using a mediation approach with this couple?
How would her use of skills differ depending on whether she used an emergent mediation approach
or a traditional therapist approach?
MAJOR ASSIGNMENTS
The following role- plays can be used for major assignments. See the section on Major
Assignments in Chapter 6 for instructions on how to prepare a written analysis. These
role- plays give you broad latitude about how to prepare and how to intervene. You can use
theory from this chapter or from other mediation books and articles.
Assignment III- A: Gun Prohibition Case
The three roles to choose from in this case are Adelle (who will take on a mediator role),
Faith, and Connie. If any of the role- players are male, they could be Arnie, Foster, or
Constantine.
Adelle is the administrator for Conflictia’s Seniors’ Center (CSC). At CSC’s last annual
meeting, many members said they were concerned about their safety on the streets of
Conflictia. They believed that the elderly are especially vulnerable to violent crime because
of concerns such as physical frailties, dementia, and lack of awareness about potentially
30 A derogatory term, suggesting the person is a coward.

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dangerous situations. A motion was passed at the meeting that the Center should send a
position paper to each of the three major political parties in Conflictia: ROC, LOC, and
SIM.31 The LOC Party has recently proposed that Conflictia pass a constitutional amend-
ment to ban possession and sale of all guns and rifles.
Among members of CSC, there is rift between (1) those who believe prohibiting guns
would go a long way to promoting safety and (2) those who believe that prohibiting guns
not only would be ineffective but also would impose a gross infringement on the rights and
freedoms of law- abiding citizens. To resolve their differences, Adelle suggested that they try
a two- party mediation process, in which she would act as mediator.
Each side of the debate has met as a group and appointed a leader to represent its view-
point. Faith will represent those who favor the proposed constitutional amendment to ban
guns. Connie will represent those that oppose the proposed gun prohibition. They will
meet with Adelle to try to work out a joint position paper that they will present to the three
political parties. They believe CSC will have a stronger voice if it submits a single, con-
sensus report, rather than have members with different viewpoints submitting their own
suggestions. They also believe this process can bring members of the community closer
together if the process is successful; conversely, an unsuccessful process could be alienating
and divisive.
Connie’s Confidential Facts
Connie is a member of the Conflictia Gun- Toting Association and has a collection of
rifles, some of them antiques. She doesn’t hunt, and they stay in a special locked case.
If the gun prohibition laws are passed, Connie would not turn in her guns as a matter
of principle. Prohibition is just another attempt by government bureaucrats to enter the
bedrooms and basements of law- abiding citizens. Money could be better spent on food
for the hungry or housing for the homeless. Although Connie does not agree, most peo-
ple at CSC who oppose gun prohibition believe that the government should be spending
more money on law enforcement and prisons in order to make the streets safe for all
citizens.
Connie does not like conflict— particularly conflict involving arguments and raised
voices. She is concerned that Faith might get carried away and start yelling. If this happens,
Connie will withdraw into silence. Better to avoid this type of trouble. In addition, Connie
isn’t sure the mediator (Adelle) can handle Faith.
Faith’s Confidential Facts
Faith tends to express feelings openly, verbally, and with broad hand gestures— perhaps it is
a cultural thing. The issue of gun control is an emotional issue for Faith, having been mugged
at gunpoint only 18 months ago. Faith realizes that she represents a group from her agency,
and will try to keep her personal experiences in check— most of the time. She also wants to
ensure that their position paper will significantly affect the political debate. There is no use
in offering suggestions that government will just ignore. The LOC Party already favors the
constitutional amendment, but it needs to convince members of the SIM Party, and even a
few of the softer heads of the ROC Party, for the amendment to have any chance of passing.
Faith and her constituency believe that the purpose of government is to keep peace and
order. They see gun prohibition as a legitimate way to reduce the incidence of violent crime
31 These acronyms stand for Right of Center, Left of Center, and Somewhere in the Middle.

Mediation 297
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and injury. Faith is also aware of suicide statistics showing that the availability of guns is
associated with a higher incidence of completed suicides. If people having suicidal thoughts
have direct access to an effective means of killing themselves, then they are more likely to
kill themselves. Also, unplanned murders (committed in the heat of passion) are more likely
when guns are accessible. Spousal violence, in particular, can result in death rather than
lesser injury when guns are readily available.
Faith is subject to occasional, short- term memory lapses. At one point in the meeting,
Faith might lose her train of thought and start asking about why the food in the CSC is so
bad. She is embarrassed about her memory lapses and will try to cover them up— perhaps
pretending she has a hearing problem. Consensus is very important to Faith. She likes to
get along with everyone and doesn’t want this debate to leave any scars on CSC. However,
Faith is a tough bargainer, particularly when the stakes are so high.
Adelle’s Confidential Facts (Mediator)
Although Adelle has a degree in public administration, she is also a former Navy admiral.
In the military, she learned to deal with people straight on— no nonsense. Adelle person-
ally favors gun prohibition, not just for the public but also for the police. Only the national
armed forces should have access to guns. Adelle has seen the damage people can do when
they do not know how to use a gun properly. Adelle is also a registered member of the LOC
Party, which favors gun control.
To prepare for this meeting and plan a process, you may want to meet with another
person from your class who is also playing the mediator. Brainstorm issues that you might
expect and identify strategies to help you deal with them. For instance, is the main issue
whether to pass a constitutional amendment to prohibit guns? How can Adelle help
to heal the divisiveness within the CSC and encourage both sides to work together?
Consider bringing snacks or drinks to the meeting to make the meeting feel more relaxed
and friendly. Consider whether there are any special considerations as to how you conduct
the meeting, given that the participants are seniors. Also, take care to avoid making ageist
stereotypes.
Assignment III- B: Stalking Situation
The Community Mediation Center has recently received a referral from local police
involving a situation of alleged stalking. The complainant is Camela, a 27- year- old
woman who lives in the Riverview District of Conflictia. She filed a complaint against
Steadman, a 34- year- old man who she believes has been stalking him. She says he fol-
lows her along the river where she jogs each morning. He also hangs around her apart-
ment building, apparently trying to peer into her bedroom window. W hen police
investigate the situation, they find insufficient evidence to pursue the case in criminal
court. Steadman has no prior criminal record, although he has been seeing a psychia-
trist. Steadman was born in Jamaica, but came to Conflictia with his parents, Ike and
Mavis Powell, when he was 5 years old. He lives with them in a home about three blocks
from Camela’s apartment. Mavis is a mayor, planning to run for re- election in the next
few months.
When Steadman receives his invitation to participate in mediation, he is very confused
about what mediation is or why he is being summoned to attend. He knows Camela, but
was not aware that she had any concerns about him. Camela is reluctant to meet Steadman
in mediation as she finds him “very creepy.” Mavis agrees to attend mediation on behalf of
Steadman. Camela is willing consider mediation because the police have told her there is

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nothing else she can do. The mediator assigned to this case is Margaret. Coincidentally, she
was also born in Jamaica.
Camela’s Confidential Facts
Camela is very concerned about her safety, having heard about a number of rapes in her
neighborhood in the last 2 years. She enjoys jogging and does not want to forfeit this
exercise. She is not sure exactly what is wrong with Steadman but she thinks he may
have schizophrenia or some other mental illness. She is worried that he may be hearing
voices that tell him to do strange things, perhaps even rape or murder. Steadman often
smiles and waves at Camela, but he has never touched her or had a conversation with
her. Camela prefers to meet with one of Steadman’s parents so she does not have to
meet face- to- face with Steadman. Further, she does not want to be outnumbered dur-
ing mediation, so she does not want both parents to attend. Camela would like to bring
an attorney, but she cannot afford one on her salary as a personal trainer. She does not
see herself as racist, but she is aware that many people convicted of rape are African
American. Also, she is concerned that the mediator is from the same background as
Steadman’s family.
To prepare for this role- play, consider your opening positions, your underlying inter-
ests, and your alternatives if this mediation is not successful. Further, consider your feel-
ings and how you might respond during mediation given your sense of fear. Be open to
thinking about creative options for solution. Do not compromise on your concerns about
safety.
Mayor Powell’s Confidential Facts
For this role- play, Mayor Powell will be participating in mediation on Steadman’s behalf.
Camela believes that Mayor Powell is acting on Steadman’s behalf so that she does not have
to be in a room with Steadman. Mayor Powell did not want Steadman to participate in medi-
ation because he lacks mental capacity and needs a parent to represent him. Steadman has
a moderate developmental disorder with cognitive challenges. He may also have an autism
spectrum disorder, but this has never been diagnosed. Mayor Powell knows Steadman is
socially awkward. She also knows he is not violent or dangerous. Mayor Powell particularly
concerned about keeping the alleged stalking out of the public eye. She is concerned how a
negative story about Steadman could damage her reputation and ability to win re- election.
Mr. Powell is also very protective of Steadman and wants to ensure that he is protected—
legally, emotionally, and socially. He believes that Steadman has done nothing wrong, so he
is innocent unless proven guilty of something. Steadman deserves freedom, respect, and
acceptance. The family is concerned that Camela’s concerns are based on racist stereotypes
about young Black men (e.g., violent, predatory). They also do not like when she calls them
African Americans, as they come from Jamaica and identify as Jamaican. The Powells think
that Camela wants Steadman locked up and completely out of the neighborhood. They
believe that Steadman has the right to be free and to go wherever he wants. Still, they do
not want trouble with Camela, the police, or the media. They like Margaret, the mediator.
They view mediation as a type of court. They may try to ally with her and get Margaret to
rule in their favor. Steadman has a psychiatrist who provides psychotherapy. Steadman has
no friends. He likes gardening, hiking, and walking his dog. Steadman is enamored with
Camela and means her no harm.

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Margaret’s Confidential Facts
Margaret is an experienced mediator with a mental health background. She is not familiar
with the laws regarding stalking and what would be required to obtain a court order for
protection. Margaret knows she is supposed to remain neutral, though her agency policies
also state that she is responsible for ensuring a safe and fair mediation process.
To prepare for this meeting, you will need to determine how to begin the process. For
instance, do you want to call or meet with each party separately? How will you deal with the
fact that Steadman will not be attending mediation on his own behalf ? How will you assess
for safety and power issues? Determine whether you want to use an interest- based or task-
oriented approach for this mediation. Also, you may want to have more than one session so
you can focus on the early phases of mediation during the first session and the latter stages
in the second session.

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Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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C h a p t e r s e v e n
transformative Mediation
The introduction to Module III focused on t wo models of mediation, settlement- focused and interest- based. You may be wondering why transformative
mediation merits a separate chapter. Some mediators view the skills and strategies used in
transformative mediation as complimentary to those in interest- based mediation. According
to this view, transformative mediation (Tf M) is a style or constellation of skills that can
be sprinkled into one’s mediation practice along with other approaches. Many of its stron-
gest proponents, however, view Tf M as a distinct process that should not be melded with
other models of mediation; to mix methods causes confusion and the entire process loses
coherence (Bush & Folger, 2005). Whereas the fundamental goal of interest- based media-
tion (IBM) is to help parties achieve a mutually satisfactory agreement, Tf M is designed to
transform the manner in which parties deal with conflict. Although Tf M may help parties
reach a mutually satisfactory agreement, this is not a primary goal. As you work through
this chapter, please note how IBM and Tf M share some of the same skills; however, these
skills are often used for different purposes within each model. For instance, an interest- based
mediator may use active listening to help parties calm down and engage in rational problem
solving. Although a transformative mediator may also use active listening skills, the purpose
may be to facilitate emotional engagement, rather than to calm the parties.
LEARNING OBJECTIVES
Upon successful completion of this chapter, you will be able to:
• Critically analyze the strengths and limitations of a transformative approach to
mediation.
• Empower mediation participants through strategies such as sharing control over
the process, caucusing, facilitating insight, and creating conditions that foster
creativity.
• Provide opportunities for mediation participants to listen to, acknowledge, and
validate one another’s perspectives.
• Help mediation participants decide whether and how to offer apologies and
forgiveness.

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This chapter begins with a definition of Tf M, including
its vision, objectives, and core strategies. The next sec-
tion explores the rationale for Tf M. The middle sections
of this chapter use a case study to demonstrate how trans-
formative mediators can facilitate empowerment and rec-
ognition through a range of strategies and skills. The final
section of this chapter analyzes the potential limitations
of Tf M. As you work through this chapter, consider spe-
cific conflicts that you have experienced and observed.
Reflect on how Tf M could be helpful in those contexts.
TRANSFORMATIVE MEDIATION DEFINED
To understand Tf M, it is helpful to appreciate the meaning of the more general term, con-
flict transformation. Conflict transformation refers to a process that seeks to alter the way
that people deal with conflict, for instance, shifting them from violence to peace, from
avoidance to engagement, from contempt to respect, and from competition to collabora-
tion (Berghof Foundation, 2011). Although conflict may lead to destructive patterns of
interaction, a transformative approach highlights the potential of conflict to energize people
toward positive change (Lederach, 2006). Whereas interest- based and settlement- oriented
approaches are designed to help people solve particular problems, transformation focuses
on the processes of conflict interaction rather than the solutions or particular outcomes.
Transformative conflict resolution (CR) suggests helping professionals can do meaningful
work without making resolution the primary or only goal. For instance, we can help people
come to terms with conflict, accept its existence, cope with it more effectively, and grow
with or despite the conflict (Mayer, 2009). A transformative approach does not view con-
flict as an isolated event to be resolved, but rather as an integral component of society and
human interaction (Berghof Foundation, 2011).
In some instances, transformation requires addressing the root causes of conflict, for
instance, denial of basic rights, needs, or respect for the dignity and worth of particular
groups or individuals. Consider a youth who responds to racial insults from a teacher by
striking that teacher. Merely bringing the youth and teacher together to deal with the spe-
cific incident may do little to transform the context in which the incident took place (e.g.,
the school or community where racism is prevalent). Effecting change at a broader con-
textual level may require prolonged engagement and effort, assessing and addressing the
underlying origins of the conflict (Berghof Foundation, 2011).
In other instances, transformation is not based on addressing underlying causes of
conflict, but rather providing people with the time, space, and skills to manage conflict
more effectively. Thus, helping professionals can facilitate transformation by providing a
safe environment to engage in conflict, opening communication, sharing stories and feel-
ings, building trust, practicing CR skills, and exploring creative ways of managing conflict
(T. Lewis & Umbreit, 2015; Mayer, 2009). Transformative approaches may be particularly
important for intractable conflicts, conflicts that have endured for a long time and with no
easy solutions in sight. Thus, establishing ground rules in a transformative model is not
limited to how the parties interact during formal CR meetings; ground rules may provide
guidelines for how to interact in the community and in particular social contexts. In situ-
ations where it may not be realistic to extinguish all forms of fighting, the parties might
negotiate rules for “fair fighting.” An interprofessional medical team with high levels of con-
flict, for instance, might agree that team members may express their concerns strongly, pas-
sionately, and even defiantly— to each other. They may also agree to speak respectfully with
When we quit thinking primarily
about ourselves and our own
self- preservation, we undergo a
truly heroic transformation of
consciousness.
—Joseph Campbell

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patients, families, and members of the public, keeping the more heated debate within the
confines of their team meetings.
W hile there are many possible approaches to conflict transformation,1 Bush and
Folger (2005) developed a particular model of Tf M that has gained substantial popu-
larity since the 1990s. They conceptualize Tf M as a voluntary and consensual process
designed to enhance the quality of interaction between people as they discuss their
conflicts, concerns, and possibilities for resolution (Folger et al., 2010). Transformative
mediators provide clients with a time, space, structure, and opportunities to transform
their conflict, including their ways of communicating, understanding, acknowledging,
and problem solving. Bush and Folger (2005) define the true promise of mediation as
its ability to facilitate empowerment and recognition. Empowerment refers to the capac-
ity of mediation to promote each party’s sense of strength and ability to manage conflict
and decisions that affect their lives. Under Tf M, mediators do not try to induce clients
into agreement. Instead, they support each client’s deliberation and decision making at
every point in the process, allowing them to agree or disagree with each other (Folger
et al., 2010). Transformative mediators are fierce supporters of client self- determination,
showing great faith in clients to make good decisions for themselves ( Jameson, 2010).
Recognition arises when clients develop better understandings of each other’s thoughts,
feelings, and perspectives, as well as when they acknowledge and show empathy for the
other’s thoughts, feelings, and perspectives. By providing clients with a time and place
to engage in constructive conversation, mediators allow parties to develop new insights
about themselves, each other, and their conflict. As the parties demonstrate greater
understanding toward each other, the quality of their relationship improves. Recognition
and empowerment are interactive dynamics. As each party moves from feeling disem-
powered to more empowered, they are better prepared to listen to each other and show
understanding and compassion. As each party feels better understood and validated, they
are better prepared to take control over their conflict and important decisions that need
to be made (Bush & Folger, 2005).
Informing clients that mediation will facilitate empowerment and recognition may
sound like professional jargon or empty platitudes. So, how would one explain Tf M to cli-
ents in a meaningful way? The following paragraph demonstrates how you could explain
Tf M in plain language.
Before we get started, perhaps we could discuss what each of you know about mediation
and what type of mediation process you would like to have [pause for response and adjust
answer accordingly]. As you may have heard from those who referred you to mediation, my
role is not to judge who is right or who is wrong , or to make any decisions for you. My role is
to provide you with a safe place and structure to talk about the conflict that brought you to
mediation. I can support your discussion so you can speak freely and be heard by one another.
If you have questions about how to communicate or negotiate more effectively, I can provide
suggestions, but you will be the ones making all the decisions.
Although you may develop an agreement through the mediation process, reaching agree-
ment is not the primary goal of mediation. Depending on your preferences, you may want to
develop deeper insights, better relationships, or a greater sense of control over your situations.
Each of you has your own view of what has happened in the past and what you would like to
1 E.g., T. Lewis and Umbreit (2015) refer to their transformative model as a humanistic approach to media-
tion, focusing on dialogue rather than resolution, emphasizing the strengths of the parties, and utilizing the
healing power of sharing stories and personal feelings.

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do in the future. You do not have to agree with each other about what has happened, but at
least you can get a better idea of where the other person is coming from.
I trust you to make good decisions throughout this process. My role is one of support.
I will listen carefully to both of you. I will help you decide what type of discussions will be
most beneficial to you. When both of you agree about how to proceed, we can move ahead
based on those agreements. When you disagree, we can talk about your concerns further. I can
provide you with opportunities to share your concerns in a constructive manner. As you listen
to each other, you may want to show that you understand the other person’s thoughts, feelings,
and perspectives. I can help you demonstrate understanding , but I will never force you to say
anything. You may also want to learn more about each other’s concerns, goals, options, and
resources. To assist with your conversation, I may ask questions for clarification.
One of the primary benefits of mediation is that it provides you with an opportunity to
take greater control over issues affecting both of you. I am not going to make decisions for you.
You decide whether you want to mediate, what you want to mediate, and even how you want
to mediate. During conflicts, people often feel a lack of control or power over the situation.
I can help you gain a greater sense of control over the conflict and the decisions to be made.
You may want additional information. I can help you decide how to gather and share that
information. You may feel stuck with just one or two options. I can help you expand the choice
set by using your creativity to full advantage. In order to decide what to do in the future, we
can talk about various options. If both of you agree to some sort of solution, we can put that
agreement into writing. If you do not reach agreement, then you may still leave mediation with
a better understanding of each another’s positions and the options available to you.
I am open to hearing any questions that you have about mediation, including any clarifi-
cations or concerns. This is your process. You may decide how we should begin.
This introduction could be broken down into smaller segments, providing clients with the
opportunity to ask questions and make comments throughout. The introduction should
really be a conversation, engaging the parties in a discussion, rather than an opening state-
ment, simply presented to the clients (Bush & Folger, 2005). The mediator could also dis-
cuss the voluntary and confidential nature of mediation, as discussed in the introduction to
Module III. In addition, the mediator could describe mediator neutrality, meeting guide-
lines, and other topics for the orientation stage of mediation.
This chapter emphasizes Bush and Folger’s model of transformation, including its
focus on empowerment and recognition. Note that other transformative models focus on
other aspects of transformation, such as facilitating storytelling (Winslade & Monk, 2008),
insight (Picard & Melchin, 2007), moral growth, open dialogue, creativity, and imagination
(Lederach, 2005; Woolford & Ratner, 2009). Rather than presenting competing models of
Tf M, this chapter integrates these aspects of transformation into the discussion of empow-
erment and recognition. For instance, facilitating storytelling and insight fits with recogni-
tion. Facilitating creativity and imagination fits with empowerment. Remember that the
overall goal of Tf M is to give clients the opportunity to enhance the way that they deal with
conflict and with one another. There are many ways to empower them to achieve this goal.
RATIONALE FOR TRANSFORMATIVE MEDIATION
Tf M views conflict not as a problem to be solved, but rather as a crisis in human interaction
(Institute for the Study of Conflict Transformation, n.d.). When people become embroiled
in conflict, they tend to focus on themselves rather than the other person: “Why did this
happen to me;” “What am I going to do about it;” and “Why wasn’t this other person more
considerate of my well- being?” When this negative conflict spiral begins, people have

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greater difficulty thinking about the situation clearly and objectively. They may avoid com-
munication, or hold anxiously to their solutions and perspectives ( Jameson, 2010). When
one person responds defensively, the other person may react with greater fear, frustration,
or anger. In turn, these feelings may lead each person to denigrate or demonize the other. As
the conflict exacerbates, each person experiences a sense of weakness and incapacity: “No
matter what I do, she’ll never change,” “I’ll just have to put up with this problem,” or “I’ll go
to court and the judge will see things my way, I hope …” The primary rationale for Tf M
is that it provides clients with an opportunity to reverse this negative conflict spiral. Tf M
helps clients shift from feeling weak and disempowered to feeling strong and in control.
Tf M provides clients with an opportunity be more responsive and constructive, human-
izing relations and enhancing deliberations about how to manage the conflict. Tf M allows
clients to hear one another, truly listening to and understanding each other’s perspectives
(Bush & Folger, 2005).
Tf M builds on Carl Rogers’ (1957) client- centered approach, appreciating the value
of listening and demonstrating deep trust in the capacity of people to make good decisions
as experts in their own lives. Tf M holds an optimistic view of people’s inherent abilities,
including their capacity to move beyond crisis and re- establish balance between themselves
and others. Tf M adopts a relational view of people, focusing on their capacity to connect
with each other while still retaining their sense of autonomy (Institute for the Study of
Conflict Transformation, n.d.). In other words, Tf M fosters growth in the individual par-
ties as well as in their relationships (L. Parkinson, 2011). As transformative mediators listen
and demonstrate empathy with their clients, they model recognition and alternate ways of
communicating. The mediator’s role is not to instruct clients, but rather to support their
quest for clarity, insight, empathy, choice, decision making, connection, and acceptance of
personal responsibility (Bush & Folger, 2005).
Although transformative mediators adopt a relatively nondirective approach, this does
not mean that they do little. Transformative mediators attend intensely and continuously
to each party, including their nonverbal and verbal behaviors and interactions. They stay
mindful and focused, intentionally keeping out of the clients’ way and minimizing inter-
ruptions. They need to be present to help clients focus on the here and now, including
conflicts and dynamics transpiring in the room. Transformative mediators do not gloss
over differences or encourage Band- Aid solutions. They may sharpen differences between
people, helping parties acknowledge divisions and concerns (Folger et al., 2010). “Demi,
I hear you saying that we need a stronger safety net to ensure that everyone’s basic needs
are met. Ruby, you seem to be saying that expanding welfare would only encourage more
people to be dependent on government handouts.” Although the mediator models respect-
ful language, the mediator does not use positive reframes to highlight common ground or
to bridge differences. He also avoids placing his own value judgments on the conflict or how
it should be handled. The mediator trusts the parties to manage differences and reach their
own conclusions. This allows clients to recognize, process, and accept challenging feelings
such as anger, frustration, hostility, and anxiety.
Whereas a settlement- oriented mediator maintains relatively tight controls over the
agenda (“Let’s talk about what you plan to do in the future”), transformative mediators
are not afraid to allow clients to engage in discussions of volatile or dangerous issues (“It
sounds like race is the unspoken elephant in the room. Is this issue too uncomfortable to
discuss, or would you like an opportunity to talk about the role that race plays in the pres-
ent conflict?”) (Cloke, 2001). Conflict transformation does not mean encouraging cli-
ents to compromise or give in; at the same time, it does not mean escalating the conflict.
Transformative mediators help clients dealing with uncertainty, confusion, turmoil, stress,
and danger, enhancing their motivation and energy to stay with conflict. Tf M also allows
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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parties to discuss and rehash the past, as reviewing the past can help them reassess the cur-
rent situation and their plans for the future (L. Parkinson, 2011).
As noted earlier, Tf M’s primary goals are empowerment and recognition rather than
settlement or resolution. Still research indicates that when parties achieve these goals, they
are more likely to reach agreement (Donohue & Liang, 2011). In other words, when parties
listen to each other, acknowledge their differences, and assume responsibility for how to
proceed, they strengthen their capacity to resolve their differences in a collaborative man-
ner. The parties may also be more likely to follow through on their agreement if they have
taken ownership of the process and if they have learned how to manage ongoing concerns
more effectively. The outcomes of Tf M also tend to be more sustainable as the parties have
had an opportunity to fully explore and resolve issues, rather than racing toward agreement
for the purposes of attaining an expeditious settlement. People do not want to be induced
into agreement; rather they want to be heard, to have voice and choice, and to have control
over the decision- making process. Tf M affords clients a structure for learning how to relate
effectively with others, even in the midst of conflict- related emotions such as anger, hurt,
grief, and frustration (Bush & Folger, 2005).
When dealing with enduring conflict situations, it may be unreasonable or counterpro-
ductive to create expectations that conflict will be fully resolved within a short time frame
(Mayer 2009). Tf M may be particularly useful for such conflicts because success may be
gauged in relation to incremental progress:
• Have the clients come to terms with which issues are solvable and which issues may
remain insolvable?
• Are the clients learning how to respond with civility, honesty, and reliability, whether or
not the other person is behaving in a similar manner?
• Do they have a greater sense of the history of the conflict, its causes, and factors that
maintain the conflict?
• Has their sense of hopelessness been replaced with a greater sense of optimism or
empowerment? (Mayer, 2009)
Even small changes may be viewed as success. For high conflict situations, a relatively small
improvement in the tone of language or the sense of hope by the parties can be momentous.
Changes manifest through mediation may contribute to personal strength and understand-
ing, with positive repercussions extending well beyond the end of the formal mediation
process (L. Parkinson, 2011).
Tf M has been used in a broad range of contexts, including workplace disputes
( Jameson, 2010), community- based conflict, intergroup discord, divorce, family business
conflicts, and diversion from criminal and civil courts (Bush & Folger, 2005). Tf M may
be particularly useful in situations where the parties have ongoing connections as neigh-
bors, family members, coworkers, or professional client relationships. Tf M not only helps
parties resolve distinct issues; it helps them interact more constructively well beyond the
mediation sessions. Tf M not only provides benefits for the immediate parties, but also for
the communities, organizations, families, and other social systems in which they function.
Ultimately, proponents of Tf M envision their process as having the potential to transform
society as a whole (Bush & Folger, 2005).
EMPOWERMENT
Empowerment refers to any process in which individuals or groups gain greater con-
trol over matters that affect them. At a psychological level, empowerment is marked by

Transformative Mediation 307
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enhancement of one’s self- esteem, confidence, and sense of self- efficacy. Thus, empower-
ment is experienced when a person moves from lack of ability and action to participate
in bringing about resolution to a position of strength indicated by someone who man-
ages conflict in a calm, centered, confident, decisive, and organized manner (Donohue &
Liang, 2011). At a social level, empowerment involves gaining power through education,
politicization, and collective action (Freire, 1994). Indicators of empowerment shifts
include the following:
• Clients have a clearer understanding of their situation, including their goals, wants, inter-
ests, and needs.
• Clients become more aware of the options available to them (what choices are available
and that they have control over them).
• Clients improve their CR skills, including their ability to listen, express their concerns,
identify wants and needs, organize and analyze issues, present arguments, brainstorm,
and evaluate alternative solutions.
• Clients gain awareness of resources already in their possession or available to them to
achieve their goals and objectives.
• Clients make decisions for themselves rather than relying on judges, experts, or others to
make decisions for them.
• Clients reflect, deliberate, and make conscious decisions for themselves about what
they want.
• Clients are able to analyze the strengths and weaknesses of various choices, enabling
them to make well- informed decisions.
• Clients have a sense of calmness and hope about their conflict situation.
• Clients feel strong and in control of the decisions affecting them (Bush & Folger, 2005).
Research suggests that people who are empowered are better able to describe conditions as
they are and as they should or could be in the future; research also suggests that empower-
ment is positively correlated with the ability to be communicatively open, decisive, and
clear about one’s positions (Donohue & Liang, 2011). In contrast, people with lower levels
of empowerment tend to have greater difficulty engaging in conflict in a constructive man-
ner. They tend to raise highly charged issues. They may also have difficulty articulating their
concerns with clarity and confidence (Donohue & Liang, 2011).
To demonstrate the process of empowerment, consider the following example of child
protection mediation.
Madge is the 22- year- old mother of Caris, a 4- year- old who was removed from Madge’s
home because of concerns about child sexual abuse. Paul, the child protection worker
who conducted the assessment, believes that Madge’s boyfriend, Bryce, had been
molesting Caris ever since he moved in with Madge, 4 months ago. Madge denies that
Bryce would hurt Caris in any manner. Madge feels distraught and helpless. She hires an
attorney to help her go to court for an order requiring protective services to return Caris
to her. The administrative judge responsible for the case refers the parties to Travis, a
transformative mediator who specializes in child protection cases.
If Travis viewed this situation from a problem- solving approach, he would see his role as
helping Madge and Paul identify their concerns and underlying interests so he could help
them develop a mutually agreeable solution. Instead, Travis strives to facilitate empower-
ment and recognition. The following sections describe ways in which the mediator can
support the empowerment of both parties. Note that the examples are not presented in a
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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fixed order for the mediation process. In contrast to the structured nature of interest- based
and settlement- oriented mediation, the phases of Tf M are much more fluid. Although the
mediator may generally follow the phases of preparation, orientation, storytelling, and so
on, transformative mediators take their lead from the clients and are not bound to follow
the phases in a rigid manner. Further, the following examples are intended to illustrate how
mediators might support empowerment shifts; these examples are not intended to provide
an exhaustive list or indicate only the best ways to facilitate empowerment.
Control over Process
Interest- based mediators suggest that they maintain control over the process of mediation,
while providing clients control over the decisions or outcomes. In contrast, transformative
mediators provide clients control over both the process and the outcomes. Empowering
clients starts from the outset of the process, with the mediator allowing the parties to deter-
mine how the mediation will proceed, including the staging, timing, and sequencing of
topics. Thus, when Travis initially contacts the parties, he might ask them where and when
they would like to meet. Ordinarily, Travis prefers to mediate in his office, believing this
to be a neutral, friendly place to meet. In this case, both parties suggest meeting at Paul’s
office. Although Travis questions in his own mind whether this location gives Paul a tactical
advantage, he does not impose his preferences. Rather, Travis inquires why they want to
have the meeting at Paul’s office. Madge and Paul note that it is a more convenient location
than his office. Travis shows faith in their ability to make good decisions, supporting their
empowerment.
Supporting client control over the process continues at various points in mediation
process. Rather than suggesting or imposing ground rules for the parties, Travis asks them,
“What type of guidelines do you think might be helpful to ensure that our conversations are
safe, meaningful, and productive?” Initially, Madge and Paul are unsure about what Travis
means by guidelines. Travis mentions topics such as guidelines for showing respect, speak-
ing, and confidentiality. Madge says that whatever is discussed in mediation should stay in
mediation. Paul explains that he cannot promise absolute confidentiality because his man-
date is to protect Caris from abuse or neglect. Madge retorts, “I thought mediation was
supposed to be private, but now I’m hearing that whatever I say can be used against me.”
Travis invites Paul to respond to Madge’s concern. Paul explains that he wants to resolve
things in mediation and that he does not want to go to court. Still, he cannot promise that
the case won’t end up in court. Travis explains that often the parties agree that they won’t
call the mediator as a witness, so in that sense, the confidentiality of mediation is preserved.
He says it is up to them to decide what information that they want to share, and under what
circumstances. Madge notes that if Paul can share things from mediation then so can she.
As they discuss this matter further, they both agree that they want to avoid court. They also
agree that if the case does not go to court then the information shared in mediation will not
need to be shared with anyone outside the mediation process. Madge says she might have
to watch what she says in mediation so that she doesn’t get into further trouble. Personally,
Travis would like to encourage Madge to trust the process and be as open as possible. As a
transformative mediator, however, he validates her concerns. “I understand how you might
feel guarded about what you say in mediation.” He also offers to check in with Madge and
Paul as mediation progresses to see if they have any additional concerns or guidelines about
confidentiality.
Madge asks what other types of guidelines are common in mediation. Travis says that
some people agree to no interrupting one another; when one person starts to speak, the
other will give time to finish what he she is saying. Paul and Madge say this rule is too

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restrictive. Instead, they agree to give each other equal opportunity to talk, but there may
be occasions when one person can interrupt the other. This empowers the parties by giv-
ing them greater say over the process. They also learn skills for dealing with conflict on
their own. If their rule proves problematic, they can review it and negotiate a more effective
one. They are not completely dependent on the mediator for guiding them through the
process. Establishing ground rules about being polite and respectful can sometimes shut
down conflict and communication. Transformative mediators support the open sharing
of information, even passion, anger, and other strong emotions. Travis is not afraid that
Paul and Madge will say what they need to say, and in the manner that they need to say it
(Cloke, 2001).
Paul asks whether attorneys should be present during mediation. Travis supports
Madge and Paul in making this decision. They discuss the advantages of having attorneys
present: having legal advice readily available, making sure they stay on task, and ensuring
their rights are respected. They also discuss disadvantages. Madge is concerned about keep-
ing legal fees down. Paul says that the main issues are not really legal issues, but rather how
Madge and Paul can make arrangements to ensure that Caris is safe. Eventually, they agree
not to have attorneys present during mediation, but available via telephone should they
need legal consultation. Travis thinks that Madge might want to have her legal advisor pres-
ent because she is less knowledgeable about the law than Paul. Although Travis is aware of
potential power imbalances, he reminds himself to trust Madge to make good decisions for
herself. He notes that his role is not to rebalance power between the parties.
Although the parties have not discussed or finalized all the process issues, Paul starts
to delve into the issues that gave rise to the current conflict. “My biggest concern in this
case is Madge’s denial. We have a report from an entire medical team specializing in sexual
abuse assessments. This report finds clear evidence of sexual abuse. If Madge wants Caris
to be returned home, then she has to admit that Bryce has been molesting Caris and that
Madge needs to end her relationship with Bryce.” Madge counters that there is no proof
that Bryce has been molesting Caris. She defends Bryce and contends that Paul is making
up facts. Travis is caught off guard. The conversation has quickly turned from talking about
guidelines for the process to getting into the heart of the conflict. Rather than steering the
clients back to discussing process issues, he allows them to continue their discussion of what
has transpired. Even if Travis may not feel ready to discuss these issues, the clients themselves
have indicated they are ready. He says to himself, “Trust the process.”
As the conversation proceeds, Travis helps the clients identify topics they want to dis-
cuss, as well as their priorities in terms of the order and importance of each topic. Initially,
Madge believes that mediation is about having Caris returned right away. She also wants
Paul disciplined by his agency. Paul suggests the first order of business is establishing super-
vised visits between Madge and Caris. He knows the importance of mother- daughter con-
tact and attachment. Travis notes each of these concerns, validating their importance to
each person without making judgment about which issues are more important or more
easily negotiable. Travis withholds his concerns that talking about Paul being disciplined by
his agency may be beyond the scope of the mediation; although there may be a better forum
within the child protection agency to discuss this type of concern, he allows the parties to
set the agenda for mediation. They are in the best position to know what topics are most
important. Travis notes that a key benefit of mediation is that it can improve the working
relationship between Madge and Paul. Madge vehemently opposes this notion. She says
that she does not want an ongoing relationship with Paul. She wants him out of her life as
soon as possible. To Madge’s surprise, Paul says that’s a goal he can live with.
By asking the parties about their goals for mediation, transformative mediators facilitate
client self- determination, autonomy, and choice (Bush & Folger, 2005). Some clients may
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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want to focus on problem solving and moving on. Some clients may want to focus more
on reviewing the past, working through emotions, or enhancing their relationships. Tf M
allows parties to determine the goals and focus of mediation. Although the mediator does
not push clients to work on emotional or relational issues, they may change their minds and
focus as mediation progresses. Initially, Madge wants nothing to do with Paul. If they are
able to experience empowerment and recognition, however, Madge may eventually see the
benefits of an improved relationship. The success of mediation, however, is not determined
by whether the mediator achieves his goals. Although Travis offers a process that supports
empowerment and recognition, he does not force these dynamics onto the parties.
In supporting client control over the process, transformative mediators to not strive to
keep parties “on track.” Rather, they allows parties to delve into seemingly tangential issues,
respecting the clients’ choice to discuss what they believe is important (Moore, 2014).
Caucusing
Caucusing refers to individual meetings between the mediator and each client. In settlement-
oriented mediation, the mediator might use caucusing to work through impasses, probing
each client to see what compromises they are willing to make, or using reframes and other
persuasion techniques to change the parties’ thoughts about what is a reasonable settle-
ment. In Tf M, caucusing allows each party to have time with the mediator to talk things
through in a manner that they might not be able to achieve in joint sessions. When Travis
caucuses with Madge, he asks if there are any concerns from the mediation session that she
would like to discuss privately. Madge is silent for a few moments. Travis remains atten-
tive without pushing her to speak. Eventually, Madge opens up and discusses her concerns
about how the sexual abuse team handled their evaluation with Caris. She believes the team
must have used leading questions or “those crazy anatomical dolls” to get Caris to say some-
thing bad about Bryce. She asks, “If they’re so sure that Bryce molested Caris, then why
haven’t they laid criminal charges?” Travis affirms that this is a good question. Madge says
she does not want to ask this question because it might give Paul ideas about laying charges.
Travis helps Madge think through what might happen if she asks why no criminal charges
have been laid. Madge realizes that if they wanted to charge him, they would have done so.
She decides to ask what evidence they have about the alleged sexual abuse. If they have no
evidence, then they need to return Caris to her.
Travis asks an open question about Madge’s relationship with Bryce and how this medi-
ation might be affecting them. Madge responds, “Everyone is assuming that Bryce is some
sort of pedophile and woman abuser. He’s not! He’s a very kind and gentle person. He would
never hurt Caris or me.” Travis validates Madge’s statement, “It must be frustrating to keep
hearing these allegations about Bryce when you believe they are totally false.” Madge dis-
cusses her frustration further. Initially, Madge believes there is nothing she can do to change
people’s assumptions about Bryce. Travis asks, “If there was something you could do about
their assumptions, what might that be?” Madge’s pessimism starts to lighten. “Maybe we
could have another evaluation, by someone totally independent and trustworthy.” Travis
supports her decision to raise this possibility with Paul.
The preceding example demonstrates a formal caucus. Informal interactions with each
party outside the mediation also provide important opportunities for transformative medi-
ators to connect with and empower their clients. Prior to a mediation session, Travis sees
Paul in the waiting room. He asks Paul what concerns he may have about the mediation
process. Paul says he feels that he is being placed on trial. He fears that Madge and Travis
will question his assessment and decisions. He is also concerned that he will be forced to
compromise on Caris’ safety. “All that Madge wants is for me to agree that Caris can come

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home. There’s nothing to negotiate here. She won’t accept that Bryce is molesting Caris, so
there’s no way that I can agree for Caris to go home.” Travis listens carefully, striving to hear
the underlying message so he can respond effectively. He strives to help Paul feel supported
with his own agenda. Travis explains, “Mediation is not about making compromises over
fundamental issues such as child safety. Since safety is a key concern, perhaps we can talk
about creative ways to ensure Caris’ safety.” Paul remains skeptical that a creative solution
exists. Travis is patient, knowing that it may take time for Paul and Madge to trust the pro-
cess and be open to other solutions.
Insight
Mediators can facilitate insight by helping parties explore their thoughts and feelings in
order to gain new or deeper understandings (Picard & Melchin, 2007). Gaining insight is
an empowering experience; it provides the parties with fresh ways of looking at the conflict
and each other, releasing new possibilities for managing their relationship and resolving
their concerns. Initially, Madge is locked into the view that Paul is incompetent, uncaring,
and stubborn. She does not think that he assessed the situation properly and now Caris is
suffering because Paul rigidly holds onto his view that Bryce poses an ongoing threat to
Caris. She does not seem ready to hear any information that runs counter to these beliefs.
Travis validates Madge’s concerns without specifically agreeing or disagreeing with them.
“It’s hard to see Paul as a caring and competent child protection worker when you think he
has totally misjudged Bryce as a potential threat to Caris.” This comment allows Madge to
vent her concerns about Paul. Travis then makes a statement that invites Madge to think
about a new line of questioning. “I wonder if we’re getting stuck in a blame game. Madge, you
have expressed some strong concerns about how Paul conducted his assessment. Paul, you
have shared some strong concerns about whether Madge has adequately protected Caris.
Think about how each of you feel when you hear the other person talking about you …
Do you think it’s helpful for us to continue to discuss your concerns about what has hap-
pened? Might it be more helpful now to talk about what we should do next, regardless of
who might be to blame for what has happened in the past?” Travis allows the parties to
determine the direction of the conversation, though his line of questioning gives the Madge
and Paul an opportunity to think about their situation differently. Madge experiences an
epiphany. Discussing what she dislikes about Paul is not getting them anywhere. It is only
making Paul more defensive, leading him to be more critical of her. Each time Paul criticizes
Madge or Bryce, Madge wants to lash out at Paul. Madge responds, “I think it’s time that we
start focusing on the future,” indicating she is ready to reverse the negative conflict spiral.
Insights are those “aha” moments, times when we experience new levels of awareness
or different ways of understanding a situation (Picard & Melchin, 2007). Transformative
mediators may facilitate insight by asking questions about the parties’ goals, concerns,
hopes, interests, and needs. Paul wants Madge to admit that Bryce has been molesting Caris.
Travis responds, “Paul, it seems that before we can move forward on other issues, you want
Madge to confess that Bryce has been abusing her daughter. Please help me understand
whether your main goal is to secure a confession, or whether your ultimate goal is really
something else.” This question helps Paul shift his thinking. Rather than focus on obtaining
a confession he notes, “My real concern is ensuring Caris’ safety and welfare.” As he lets go
of his focus on obtaining a confession, Paul feels liberated and more optimistic about their
ability to come to some sort of agreement in mediation.
Transformative mediators use listening, questioning, and wondering strategies to
help clients gain new insights. They do not impose insights or tell clients how to think.
Although the mediator may have a strong hunch about what is driving the conflict or

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how different perspectives might lead to more effective decision making, the media-
tor encourages curiosity so the clients can develop their own hunches, interpretations,
and understandings (Melchin & Picard, 2009). “Madge, you’ve said a number of times
that keeping Caris in foster care does more harm than good. I’d be interested to hear
what you know about Caris’ foster care home, or what additional information that you’d
like to know.” Madge may have been assuming that Caris is doing poorly in foster care.
Travis’ prompt encourages her to think about the actual quality of care she is receiving
and also to consider whether she could use additional information about how Caris is
being treated.
Mediators can also help clients explore the sources of their feelings. If one party is feel-
ing particularly frustrated or irate, the mediator might ask how his current anger might be
related to past experiences (Melchin & Picard, 2009). By gaining insight into the source of
feelings, the client might be able to let go and move on. Assume Paul said he felt hurt by
Madge’s accusation that he was incompetent. Paul may be particularly sensitive to criticism
because his parents or clinical supervisors may have been highly critical. By understanding
that the severity of his reaction to Madge’s criticism was related to past experiences, Paul
might be empowered to release his anger and develop a more amicable working relation-
ship with Madge.
Creativity
When clients become embroiled in conflict, they tend to focus on their own needs and posi-
tions, negating or demonizing those of the other party (Bush & Folger, 2005). This makes
it difficult to explore creative solutions or engage in a more trusting relationship. Mediators
can inspire the moral imagination of clients by providing a time and space where they can
venture down unknown paths or develop new paths of their own (Lederach, 2005). There
is no single technique that will inspire creativity in all situations. The following examples
illustrate possible approaches; the mediator’s own creativity may be used to stimulate other
approaches.
Madge and Paul view themselves as adversaries. They are reluctant to see one another
as partners because collaborating with an enemy entails certain risks. Madge is concerned
that if she shares her feelings and concerns with Paul, he might use these against her if the
case goes to court. Paul fears collaborating with Madge because her stated goal is to have
him fired or disciplined by his agency. Travis may engage them in a discussion of possibili-
ties or hypotheses. “I know your relationship has been rocky, to say the least. I’m wondering
what your relationship might be like if each of you had started off in a spirit of trust and
cooperation. How do you think both of you would deal with concerns about Caris?” By
engaging the clients in a discussion about a hypothetical situation, they can engage in a
thought experiment about what might happen and what might be possible (Kurtz & Ritter,
2011). A thought experiment is less threatening than asking the parties to actually engage in
a trusting relationship. As the parties envision a possible course forward, they can explore
the benefits and risks without actually having to take the risks.
If the parties feel pessimistic about improving their relationship or reaching a posi-
tive solution, the mediator might help them reframe past failures as learning experiences.
Consider how many times business entrepreneurs falter before they become successful, or
how many times scientists miss the mark before they discover amazing inventions. “Failure
to obtain an expected result may be used as a precursor to new and better discoveries”
(Kurtz & Ritter, 2011, p. 123).
Simply providing clients with a quiet time and space to process issues may be sufficient
to spawn creativity. As Madge and Paul are mediating, Travis offers them a coffee break. He

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provides snacks and refreshments in another room. The break offers each of them time to
think, process their feelings, and come back to the mediation with new perspectives.
Accessing Information
Information- based conflicts arise when clients are operating on different information. Paul
believes that Bryce molested Caris. Madge believes Bryce is innocent. They may be relying
on different sources of information, as well as different assumptions and interpretations
of that information. Travis asks, “One of the key areas of dispute centers around whether
Bryce has sexually abused Caris. Perhaps we could talk about the sources of information
that each of you are relying on, and whether it would be helpful to obtain any additional
sources of information.” Madge says she does not know anything about Paul’s process for
evaluating the allegations of sexual abuse: Did Paul gather the information himself or did
other professionals participate in the evaluation; what exactly did they hear from Caris;
did they use anatomic dolls, leading questions, or some other methods to talk with Caris;
and was there any physical evidence of abuse? Paul agrees to share the full report with
Madge so they both have access to the same information. Madge discovers that the sexual
abuse assessment team relied primarily on verbal feedback from Caris. There was no physi-
cal evidence of sexual abuse and no physical evidence suggesting that Bryce abused Caris.
Nobody actually spoke with Bryce during the assessment process. Given this information,
Madge suggests that it would be helpful for Paul to meet with Bryce to conduct a further
assessment. By asking questions, Travis helps Madge and Paul access information that can
empower them to make better decisions.
Sometimes, lack of information relates to laws or agency policies. Although mediators
should not provide legal advice, they can help clients gain access to necessary information
about the laws or policies. Madge is not aware of her rights as a parent whose child is in
foster care. Travis asks Madge what she would like to know about her rights. She says she
wants to know whether and how she can talk to the foster parents about Caris’ transition
and well- being. Paul agrees to provide this information. Madge also agrees to talk with her
attorney about her rights. Once Madge knows her rights, she feels more confident negotiat-
ing with Paul.
Growing with Conflict
Madge and Paul seem deadlocked over the issue of whether Caris can be returned home
safely as long as Bryce is living with Madge. Travis can help them transform their conflict
regardless of whether they are able to reach agreement on this core issue. Empowerment
shifts arise when clients learn how to cope and strive under stressful or risky situations.
Thus, the role of a mediator may not be to help parties resolve specific conflicts, but rather to
help them stay with the conflict, engage with it, and perhaps even deepen it (Mayer 2009).
When Madge initially sought legal advice, her attorney told her not to talk with Paul
because Paul was only seeking to gather information to support his case, that Bryce posed
an ongoing safety threat to Caris. Unfortunately, avoiding communication with Paul also
meant there was no way for the parties to manage their conflict in a constructive manner.
Mediation provides Madge and Paul with a safe environment to engage in conflict. Travis
provides them with time and space to think and communicate in a constructive manner. At
times, they engage collaboratively, for instance, trying to work out a temporary plan where
Madge can spend more time with Caris at the foster home. At other times, they revert to
anger, frustration, relying on assumptions, and blaming. As a transformative mediator,
Travis does not correct this behavior. Rather, he asks questions to facilitate insight and

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provide opportunities for Paul and Madge to determine the next steps (Bush & Folger,
2005). “It seems like the discussion is starting to go around in circles. Paul, you’re con-
cerned that if Madge does not terminate her relationship with Bryce, then you cannot trust
Madge to provide a safe home for Caris. Madge, you do not believe Bryce poses any threat.
Perhaps we should think about whether it is worth continuing this discussion. Is there any-
thing new or different that either of you would like to say to the other?” Both parties take
time to think about the circular path of their discussions. Madge says, “We’re talking about
my daughter! Of course we need to continue the discussions. I’m not just going to abandon
her.” Madge starts to focus on Caris’ needs, articulating her concerns more clearly and con-
fidently. She removes blame from her language. Paul also starts to speak more about Caris’
needs, transforming how both Paul and Madge engage in the conflict. The discussion is
still heated, but much more productive. They do not necessarily agree on what is needed to
promote Caris’ welfare, but they are no longer talking at cross- purposes.
Paul suggests that he could reassess the situation, including whether Bryce poses a risk
to Caris. Madge questions how Paul could conduct such an assessment in a fair and neutral
manner. “Clearly, you have a personal vendetta against Bryce and me. You’ve already made
up your mind. What’s the use of you doing the same assessment over again?” Travis thinks
the answer is obvious— have a new child protection worker assigned to do the second
assessment. However, this answer is not obvious to Madge and Paul, so Travis withholds
making any suggestion. His role is to empower the clients to identify their own solutions
rather than to do this work for them. Paul responds defensively, “How dare you question
my integrity! I’m a professional social worker. My sole professional interest is Caris’ well-
being.” Travis helps them explore the possibility of a reassessment more deeply. “You’ve
mentioned the possibility of a reassessment. It may have some merits, but also some poten-
tial downsides. Would it be helpful to explore how a reassessment could be done in a way
that meets both your concerns?” While building on the parties’ idea, this question opens
a new line of discussion. Madge and Paul discuss how Paul’s supervisor could help oversee
the process. Madge discusses how she could be more cooperative in the assessment. Madge
appreciates the idea of having greater input into the assessment. They also agree that Paul
needs to meet with Bryce directly. Paul discusses a number of options for making the assess-
ment and shares information about assessment tools and protocols used by his agency. The
outcome of the reassessment is not assured and Madge may still be upset with Paul’s deter-
mination. Still, they have both re- exerted control over the decision making, rather than
simply leaving it to the court to make a decision for them.
Society is rife with conflicts in which people have strong, opposing positions—
abortion, capital punishment, affirmative action, global climate change, and so on. When
people from various sides of the issues become entrenched in their views, it becomes dif-
ficult to find common ground or consensus on how to proceed. Mediators can support
transformation of conflict, even deeply entrenched conflict, by helping parties move from
uncertainty, anger, and hostility to clarity, assertiveness, respect, and cooperation (Bush &
Folger, 2005).
Empowerment versus Power Balancing
Under some mediation models, empowerment refers to helping a less powerful party nego-
tiate on a more equal footing with the more powerful one. In other words, the mediator’s
role is to level the playing field and ensure that mediation is fair to both parties (Mayer
et al., 2012). One of the primary risks in this approach to empowerment is that the more
powerful party will view the mediator’s power balancing interventions as demonstrating
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empowerment does not mean balancing power. They suggest that empowerment refers
to supporting both parties to have a greater sense of control, self- determination, choice,
and autonomy. Empowerment benefits all parties. It does not contain or constrict anyone’s
power. Thus, transformative mediators provide both parties with an environment con-
ducive to constructive conversations and decision making. From this perspective, power
imbalances exist and they do matter, but the best way to help a person who is at risk of being
overpowered is to provide support and empowerment for both.
Travis notices that Madge is less articulate than Paul, giving him a power advantage.
In particular, she has difficulty presenting a coherent plan for how to ensure Caris’ safety
(Houston, 2010). Travis helps Madge and Paul articulate their concerns and proposals more
clearly and effectively, supporting empowerment for both clients rather than redistribut-
ing power between them. Paul is much more knowledgeable about the legal framework for
child protection issues. Travis could level the playing field by inviting Madge’s attorney to
participate in the sessions. Instead, he empowers both by allowing them to decide whether
and how to involve their attorneys, and how to manage any issues regarding legal informa-
tion and advice. He trusts them to make good decisions for themselves.
Although one client may be more powerful in respect to some issues, the other cli-
ent may be more powerful in respect to different issues. During mediation, Madge is
highly anxious because the stakes are so high; she can hardly bear to be separated from
her daughter. Paul is much more calm given his professional training and not having a
personal stake. Their different levels of anxiety and calmness provide Paul with a power
advantage. Still, Madge comes from a wealthy family, giving her a resource advantage
over Paul’s poorly funded child protection agency. Paul does not want to waste scarce
resources (including his own time) by going to court. Madge is very willing to invest time
and money to win this case, whatever it takes. Travis does not try to redistribute their
resources, emotions, or knowledge. To empower both clients, he provides them with
opportunities to work through their concerns in a calm, collaborative, self- determined
basis. The power differences become less important when the parties are engaging with
each other in a respectful, constructive manner. Rather than using their power over each
other, the mediator helps them use their power with each other to deal more effectively
with their concerns.
RECOGNITION
When conflicts arise, people (including helping professionals) may become angry or defen-
sive. This creates a tendency to focus intensely on one’s own interests and problems, to
the neglect of the other client’s. Each client may project a style that is hostile, suspicious,
aggressive, or rude, oblivious to the negative effects these behaviors may be having on the
other person. Bush and Folger (2005) use the term recognition to describe dynamics in
which conflicting clients move away from self- absorption and pay greater attention to the
other client’s situation. Recognition shifts occur when clients become more open, attentive,
sympathetic, respectful, and responsive to the situation of the person with whom they are
negotiating. The experience of recognition means giving recognition, rather than receiving
recognition (Bush & Folger, 2005).
When mediators facilitate transformation, note that the processes of empowerment and
recognition are iterative, not following a particular sequence. At some points, the mediator may
be facilitating empowerment. At other points, the mediator may be supporting recognition.
When clients receive recognition, the validation helps them feel more optimistic and more
empowered (Folger et al., 2010). Conversely, an empowered client is more confident and self-
assured, making it easier for that person to offer recognition to the other.

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Each client can provide recognition to others through thoughts, words, and actions by
• reflecting on the others’ situation because of a general concern for their predicament;
• consciously letting go of one’s own viewpoint in order to open up to seeing the others in a
different, more positive light;
• trying to understand how what seemed to be a hurtful or irrational act by the others
might be the product of the other parties’ reasonable response to stresses they have been
enduring;
• openly acknowledging one’s changed understanding of the others;
• apologizing for having “thought poorly” about the other party or for past “retaliatory
conduct”; and
• changing one’s behavior to accommodate the other’s interests, in light of the new under-
standing (Bush & Folger, 2005).
When recognition shifts occur, the style of communication becomes more holistic, concrete,
and attentive (Donohue & Liang, 2011). The parties demonstrate that they are genuinely lis-
tening to one another. Originally, Paul keeps stating that the situation at Madge’s home is too
unsafe to send Caris home. When Madge argues that she would never put Caris at risk, she
misses the opportunity to find out what Paul means by the situation being “too unsafe.” When
Madge responds, “You keep saying Caris will not be safe,” she opens the opportunity for Paul to
explain more fully. They may not agree with each other, but they do have better mutual under-
standing. They are engaging in a learning conversation rather than a debate. The tone is more
respectful, though they are not afraid to express their views in a passionate and frank manner.
“Paul, I don’t understand why you’re assuming Bryce is some sort of pedophile. He’s a fine,
decent man.” Frank discussion allows the parties to discover and understand each other’s per-
spectives (Donohue & Liang, 2011). It may also pave the way toward working together and
building consensus (Houston, 2010).
Transformative mediators support recognition shifts rather than command parties to rec-
ognize one another. If parties are not ready or willing to demonstrate recognition, the mediator
empowers the clients by respecting their choices. Strategies that mediators may use to support
recognition include modeling recognition, facilitating recognition of emotions, facilitating rec-
ognition of thoughts and perspectives, identifying areas of agreement and disagreement, sup-
porting apology and forgiveness, and preparing clients between sessions.
Modeling Recognition
Recognition is comparable to the client- centered therapy concept of demonstrating
empathy— that is, demonstrating you understand another person’s world from her frame
of reference. Rogers (1957) identifies empathy as one of the core conditions2 for develop-
ing a positive therapeutic relationship. Mediators (and all helping professionals) can model
empathy by demonstrating the listening skills described in Chapter 1: attending, paraphras-
ing, reflecting feelings, and summarizing. Attending refers to the use of body language,
facial expressions, and gestures to convey that you are listening. As Madge describes the
shock and horror that she experience when she learned Caris was taken into protective cus-
tody, Travis stops taking notes, puts down his pen, and gives Madge direct eye contact. He
shows he is providing his undivided attention. Without saying a word, Travis demonstrates
how to listen respectfully. Whether Madge or Paul chooses to use similar attending is up to
2 The other core conditions are genuineness and unconditional positive regard.

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them. Attending with silence may facilitate key recognition shifts. Silence ensures that the
mediator is not interrupting. It offers the parties a chance to reflect and respond. Silence
also empowers them with the ability to choose the direction of the conversation.
Paraphrasing, reflecting paraphrasing, and summarizing are related means of convey-
ing understanding and validation about what the client is saying. Paraphrasing refers to
a restatement of the client’s thoughts, beliefs, stories, or perspectives. W hen mediators
paraphrase, they not only demonstrate understanding to the prior speaker, they also pro-
vide the other client with an opportunity to hear the story or perspectives in another voice
(Bush & Folger, 2005). Paul views Madge as oblivious to the risks that Bryce poses to
Caris. W hen she describes Bryce as a gentle, caring man, Paul tunes out what she is saying.
W hen Travis paraphrases, “You’re telling us that Bryce has always been very good to you
and Caris,” Paul finds it easier to hear her perspective. Because the words are coming from
a neutral mediator, the message has a different impact. Rather than responding with irrita-
tion or dismissiveness, Paul starts to hear without judgment. Travis modeled empathic
listening without showing judgment. He validated what Madge said without agreeing or
disagreeing. Paul and Madge may learn to follow Travis’ lead, paraphrasing each other
without showing judgment. He was present in the moment. He was mindful that there
may be more than one truth. As he mirrored what Madge said, he did not try to analyze,
blame, or reframe.
Reflecting feeling refers to identifying specific emotions the client is experiencing and
putting them into words. Travis observes Madge’s eyes starting to well with tears. “Correct
me if I’m wrong, Madge, but it appears that you’re not just angry at Paul’s accusations. You
also feel hurt.” Travis validates her feelings, again showing that one can attend to the oth-
er’s feelings without judging those feelings or compromising on key issues. Though Paul
remains silent, he is starting to pay greater attention to Madge’s emotional responses.
Whereas paraphrasing refers to restating what one person has just said, summarizing
refers to reviewing what the parties have been saying over several exchanges. Summarizing
helps clients remember key points in their conversation. It also helps them decide how to
continue the discussion. Halfway through the session, Travis notes, “If it’s OK with both of
you, perhaps I could summarize the key issues that you’ve identified [pause for response].
Paul, you’d like to work on a plan for Madge and Caris to spend more time together while
Caris is still in care. Madge, you don’t think Caris needs to be in foster care, so you want to
figure out how to have Caris returned to you immediately. Are these your main concerns?”
Travis avoids reframing their concerns. He does not try to minimize their differences or
change the meaning of what they are saying. By presenting their views starkly (without
interpretation), Travis allows each party to hear each other and reflect more deeply on their
differences. Travis also models trust, openness, and patience, showing Madge and Paul
that it is OK to have disagreements and there is no pressure to come to a quick settlement.
Mediators may also use summarizing to highlight key turning points in the process. “I’ve
noticed a change in the tone of this session. Earlier, everyone was focusing on what hap-
pened with Caris. Now everyone is starting to focus on the problem solving and how to
ensure Caris’ welfare moving forward.
Whether one is paraphrasing, reflecting feeling, or summarizing, demonstrating empa-
thy is most effective when the feedback is concrete, immediate, nonjudgmental, respectful,
and authentic (Ivey et al., 2014). If Travis were to tell Paul, “I understand how you feel
about this situation,” the statement is too vague to have much impact. The clients may also
sense this response lacks genuineness. Neither Paul nor Madge knows whether Travis was
truly listening and understanding. Likewise, if Travis says, “So, you made a hasty decision
to take Caris into foster care,” Paul may feel disrespected. The use of the term “hasty” also
models the use of inflammatory and judgmental language for both parties.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Active listening provides clients with a feeling of support, knowing they are being heard
and validated. It also allows clients to determine the flow of the conversation, including
whether and when to transition to new topics (Moore, 2014). Although active listen-
ing skills may seem simple, close listening and accurate reflections require high levels of
mindfulness. Transformative mediators need to maintain constant awareness of their own
thoughts and feelings to ensure that they do not impose their own agendas or perspec-
tives on the parties. To avoid putting thoughts or words into a client’s mouth, it may be
safer to use words that are close to what he originally said. Conversely, if you use different
words, you may be able to show a deeper level of understanding and greater authenticity to
your response. You can also establish the accuracy of your attempts at efficacy by checking
back with the client. “Have I understood you correctly or is there something else you’d like
to add?”
Another approach to modeling recognition is for the mediator to demonstrate genuine
curiosity and interest in what each client is saying (Melchin & Picard, 2009). At one stage,
when Paul is talking about the pressures of documenting all his observations, Madge sighs
and turns her head to look out the window. She seems indifferent to what Paul is saying.
Travis models curiosity, saying, “I wonder how the pressures of documenting your observa-
tions has affected your work in Caris’ situation.” Madge begins to see how listening more
intently to Travis may be helpful, particularly since they will need to work together to man-
age their concerns.
Facilitating Recognition of Emotions
Transformative mediators use a range of strategies to support emotional communication,
letting clients know that mediation is a safe place to discuss and acknowledge feelings. As
noted earlier, one strategy is to reflect feelings, modeling that it is appropriate to discuss
feelings during mediation. Reflecting also helps clients feel validated when they do discuss
feelings, giving them an opportunity to examine their feelings further. Mediators may also
ask questions to open discussion of emotions. “Madge, would you like to tell us how you felt
when you learned that Caris was taken into foster care?” Questions may be used to allow
clients to vent feelings. Questions may also be used to help clients explore events that gave
rise to those feelings (L. Parkinson, 2011). Alternatively, mediators can encourage each
person to reflect on the other’s feelings. “Paul, when Madge says hasn’t seen Caris for over
two weeks, how do you think she is feeling?” Some transformative mediators are cautious
about directly asking clients to express their feelings— or to reflect the feelings of the other
person— because they do not want clients to feel forced into talking about feelings or pres-
sured into acknowledging the other person’s truths (Bush & Folger, 2005). Transformative
mediators may want to use such questions sparingly, and ideally when clients have indi-
cated that they may be ready to broach such topics. Assume Paul specifically says that he
does not want to discuss feelings and that he just wants to resolve the problem of ensuring
Caris’ welfare. Travis should respect Paul’s wishes. During a caucus, Travis could explore
why Paul does not wish to discuss his feelings. Ultimately, Travis clarifies that he is ready to
support discussion of emotional issues, but that he will not put pressure on either client to
talk about feelings or any other issue they do not want to discuss. Transformative media-
tors do not use questions to gather information for themselves, but rather to help clients
develop insights and share information between each other.
When parties do discuss emotions, transformative mediators allow the parties to vent,
to express feelings in a passionate manner, and even to escalate the volume of the discus-
sion. They do not try to diffuse the emotion, interrupt the flow, or redirect the conversation
to safer topics (Cloke, 2001). The mediator could use a check in, for instance, “Both of you

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have been raising your voices. I’m hearing a lot of frustration. How do you want to proceed
at this point?” This allows the parties to reflect on their current pattern of interaction and
determine whether to continue in the same manner. If the parties decide not to change
their pattern of communication to make the conversation more constructive,3 the mediator
respects their choice.
Facilitating Recognition of Thoughts and Perspectives
To help parties view matters from each other’s perspectives, mediators can use role reversal
and empathy- oriented questions. Travis might ask Madge, “Imagine you were in Paul’s situ-
ation as the child protection worker in this situation. What do you think your main interests
would be?” Alternatively, Travis might inquire, “When Paul was describing his process for
assessing risks, what were the main points he was trying to make?” Each client may have
difficulties seeing matters from the other’s perspectives, in part because of the tendency to
feel that presenting the other person’s views means that you are agreeing. The mediator can
remind both clients that showing you understand the other person does not mean that you
agree with their views or positions.
Mediators should attend closely to the tone of the language used by each client
(Donohue & Liang, 2011). W hen one client demonstrates recognition of the other’s
thoughts and perspectives, the mediator could paraphrase the client. This paraphrase
highlights the recognition shift and encourages both clients to demonstrate further empa-
thy toward each other.
Identifying Areas of Agreement and Disagreement
In the midst of arguing, clients may be so focused on their own points that they do
not recognize areas of agreement and disagreement. A transformative mediator could
highlight similarities and difference by restating client goals, perspectives, positions,
or interests, without taking sides or implying judgment. “Both of you seem to agree
that Paul will re- assess Caris’ situation and whether she can return home safely. I think
I’m hearing that the main difference concerns how Paul can conduct the re- assessment
in an unbiased manner.” This amplifies the issues that need to be managed, while also
acknowledging common ground. The mediator helps the clients reflect on their conver-
sation from more than one perspective. Alternatively, the mediator could also an open
question, “ W hat do you think are the primary areas of agreement and disagreement?”
Helping clients recognize areas of disagreement helps them identif y decision points,
specific times, or opportunities in which they can assert control and make decisions
(Bush & Folger, 2005).
Supporting Apology and Forgiveness
Mediators may support clients in offering apologies or forgiveness. Given the importance
of empowerment in Tf M, it is particularly important for the mediator to avoid coercing
either client into apologizing or forgiving. During a caucus, Madge admits that she felt bad
calling Paul an imbecile. Travis invites her to share her regrets with Paul. “Do you think it
might be helpful to offer Paul an apology?” If Madge seems interested but has some con-
cerns about apologizing, Travis could offer additional support. They could role- play giving
3 Under Tf M, the parties, not the mediator, define what is a constructive conversation.

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an apology so Madge could work on her wording. When Madge offers the apology, Travis
could also support Paul in offering forgiveness. “How do you feel about Madge’s apology?
Is there anything that you would like to share with her?” Transformative mediators do not
direct clients to say something nice about the other. Making an apology or offering forgive-
ness under pressure negates the value of these gestures. If a party is not ready or willing to
offer an apology and forgiveness, the mediator should support those choices, too.
Preparing Clients between Sessions
Mediators can help clients prepare for recognition during mediation by offering homework
or other strategies between sessions. If clients are having difficulty seeing each other’s per-
spectives, the mediator could ask them to keep a journal of their experiences in mediation.
Each page could be split, enabling the clients to put their own perspectives on the left half
of the page and then adding their views of the other’s perspectives on the right half. The
mediator could coach them on how to use nonjudgmental language, and how to look for
areas of common ground and key differences. The mediator could also invite clients to have
discussions with key support systems. Paul might ask his clinical supervisor to help him
understand Madge’s situation and perspective. Madge could practice active listening with
Bryce. “Do you think it might be helpful to practice your I- statements or active listening
skills before the next session?” Whenever the mediators offer homework suggestions, it is
best to do so in an inquisitive or tentative manner so the clients know the choices are truly
up to them.
LIMITATIONS OF TRANSFORMATIVE MEDIATION
In one sense, asking about the limitations of transformation is the wrong question.
Transformation is about changing the way that individuals, organizations, cultures, and
the global society manage conflict. It is a movement based on high ideals and visions.
How can one speak of limitations of a particular process when it is more of a movement
or way of being rather than just a brief intervention? Success or failure is not based on the
results of a single conflict or interaction but on whether society becomes more decent and
moral through fundamental changes in the way that people deal with conflict (Bush &
Folger, 2005).
Because there is relatively little research into the effectiveness of Tf M, its strengths and
limitations are difficult to gauge. One of the most significant Tf M studies was a comprehen-
sive evaluation of the REDRESS (which stands for Resolve Employment Disputes, Reach
Equitable Solutions Swiftly) program. This program handled employment discrimination
claims within the U.S. Postal Service. Researchers concluded that mediation facilitated the
following positive changes:
• Participants improved their manner of communicating (more calm, more open, more
confident, and more positive interaction).
• Participants established personal connections with each other.
• Participants gained insight about themselves, the other party, and their conflict.
• Discussion of a particular conflict often led to conversations about larger issues within
their relationship and at their workplace (Bush & Folger, 2005).
Although there is some support for the effectiveness of Tf M, questions for further study
include the following: Under what does transformative negotiation work? What factors

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contribute to its effectiveness? How well does this model work when a significant power
imbalance exists between the clients? To what extent does Tf M between a small number
of individuals affect the way that their families, schools, workplaces, or communities deal
with conflict?
A key question for Tf M, and all models of mediation, is, “ W hat will draw people
in to try it?” On its own terms, the goal of transformation is not winning, settlement,
fairness, or justice. Clients seeking these goals are likely to opt for other processes.
For instance, clients embroiled in conflict are often angry with one another. They may
prefer to fight it out, take revenge, or give the other side its just desserts. If they are not
motivated toward transformation of their relationships, they may resist Tf M. Another
potential downside of Tf M is that it takes longer than other models, particularly
settlement- oriented models. Some people prefer a task- oriented approach designed to
settle issues in an expeditious manner. Some people cannot afford the costs of longer-
term interventions. In some situations, the main concern is the financial cost. In many
situations, clients require early solutions for other reasons. There may be crucial ques-
tions of safety, survival, or deprivation of basic needs; these concerns may not be satis-
fied unless and until a settlement is reached. Further, Tf M does not guarantee either
resolution or an improvement in relationships. The empowerment aspect of Tf M
means that clients are free to decide to continue interacting in a confrontational or
destructive manner.
Judges, administrators, employers, schools, and other potential referral sources may
question the value of Tf M. They may prefer interest- based or settlement- based mediation
because they are concerned about settling particular disputes, keeping cases out of court,
and managing issues in a relatively quick, efficient manner. They may not fully understand
the transformative approach, or may not value its potential to transform the way that people
manage conflict in a more meaningful, lasting way. Governments, charitable foundations,
and other funding sources may also question whether the process is too “touchy- feely”
or whether it produces tangible results with a reasonable investment of time, money, and
other resources.
Although transformative negotiation is arguably most effective when both parties are
motivated toward transformation, a single party can employ the approach whether or not
the other party follows suit. One party can offer empowerment and recognition to the
other, regardless of whether the other returns the same. In fact, the approach is based on
the premise of offering empowerment and recognition because they are inherently good,
not because you expect reciprocity. “I will act morally, regardless of the actions of the other
parties.” When evaluating the success of mediation, it is helpful to explore the extent of
empowerment and recognition for each party, as well as whether and how their overall
interaction is transformed.
Mayer (2009) suggests that conflicts are rarely transformed in short- term interventions
such as mediation, particularly for enduring conflicts. To facilitate meaningful transforma-
tion in the manner that conflicting parties engage with each other, longer- term conflict
interventions may be needed. That said, Tf M could be a component of a multipronged
approach to conflict transformation; it is not mutually exclusive of other methods to
address the underlying causes of conflict.
Despite the potential limitations of Tf M, it has grown in popularity and has challenged
many of the core premises of interest- based and settlement- based mediation. For those
who are willing to engage in Tf M, it offers the potential for regaining a sense of control and
solidarity of self, as well as a meaningful and more peaceful connection with others (Bush
& Folger, 2005).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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KEY POINTS
• Tf M provides clients with an opportunity to alter the way they interact with each other,
taking greater control over their lives, enhancing mutual understanding, and provid-
ing them with the time, space, structure, confidence, and skills to manage conflict more
effectively.
• Transformative mediators can facilitate client empowerment by
• allowing clients to make decisions about the mediation process (agenda, focus,
guidelines for communication),
• helping clients act on their own agency (making decisions on their own behalf),
• orienting clients toward constructive conversation,
• facilitating insight,
• helping clients determine criteria for decision making,
• staying out of the way of client interactions so they may process issues in a manner
that they think is appropriate or necessary,
• supporting clients’ ability to stay with conflict (rather than avoid or withdraw), and
• showing faith in clients’ ability to make good decisions for themselves.
• Transformative mediators can facilitate client recognition by
• providing clients with a safe time and place to engage in meaningful conversation;
• orienting clients toward each other (supporting mutual understanding);
• modeling active listening skills through attending, reflecting feeling, paraphrasing,
and summarizing;
• asking clarification questions;
• facilitating genuine and empathic listening between the parties;
• helping clients identify areas of agreement, disagreement, and decision points;
• supporting client decisions to apologize or offer forgiveness;
• allowing clients to open verbal conflicts and express strong emotions; and
• helping clients use role reversal and perspective taking (considering alternate points
of view).
DISCUSSION QUESTIONS AND EXERCISES
1. CRITICAL ANALYSIS: Review the earlier description of the mediation between Paul
and Madge.
a. Identify three ways that Travis stays “out of the way” of Paul and Madge’s conversa-
tions and decision making.
b. Identify a situation in which Travis could have balanced power, but chose not to
do so. What are the potential advantages and risks of how Travis responded to the
power issues in this situation? What is the difference, if any, between “empowering”
and “power balancing?”
c. Identify an exchange in which Paul insulted Madge, and the mediator did not try to
“separate the person from the problem.” As a mediator, how would you have han-
dled this insult? Provide your rationale, relating it to the principles of Tf M.
d. How would you rate the success of this mediation? The parties did not reach agree-
ment about Caris returning home. How does this affect your assessment of the
effectiveness of this process?

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e. What agreement do you think would be best for Madge, Paul, and Caris? How
would you ensure that you allow the clients to reach their own decision, rather than
guide them to your preferred outcome?
2. TRANSFORMING DIALOGUE: Miranda is mediating between Thea and Tony, two
therapists who share office space. For each of the mediator’s following responses, iden-
tify which interest- based skills she is using. For each interest- based skill, develop an
alternate response based on a transformative skill.
a. MIRANDA: What concerns do you hope to resolve in this meeting?
b. THEA: Tony monopolizes the use of our group conference room. He is an inconsiderate
bastard. He leaves the room like a pigsty. On top of that, he is so rude that he doesn’t have
the courtesy to respond to my emails.
c. MIRANDA: If I’m hearing you correctly, your main concerns are about time sharing of
the conference room, keeping the room clean, and treating each other with respect.
d. TONY: Respect? How do you expect me to deal with this obsessive- compulsive control
freak? She has nothing to do but kvetch at me because she has so few clients.
e. MIRANDA: I can hear that both of you are frustrated. I want to remind both of you
about the guidelines we agreed on at the beginning of the meeting. Everyone agreed to
avoid name calling and to use respectful language.
f. TONY: You should see the malicious emails I have to deal with each day.
g. MIRANDA: So it sounds like both of you are concerned about the way that you commu-
nicate. Perhaps we could make a list of all your concerns and then prioritize which ones to
problem- solve first.
h. THEA: When we first agreed to share office space, Tony said he only needed the confer-
ence room once a week. Now, he uses it every evening.
i. MIRANDA: What are some options for sharing the office space in a more effective
manner?
j. TONY: We could split the time 50- 50 on a calendar, but if one of us is not using the space
then the other could have it.
k. MIRANDA: Interesting option, Tony. What are some other options, Miranda?
3. EMPOWERMENT VERSUS POWER BALANCING: For each of the following
examples, identify whether the mediator is using empowerment or power balancing.
For each example of empowerment, describe how the mediator could have used power
balancing. For each example of power balancing, describe how the mediator could have
used empowerment.
a. During intake, Minnie the mediator discovers that one of the clients, Chester, stut-
ters when he is anxious. She coaches him on how to avoid stuttering.
b. Eunice and Ed are arguing over financial issues affecting the services in their agency.
Ed is much more knowledgeable about budgeting than Eunice. The mediator asks
Ed to explain the figures in their budget to Eunice.
c. Tyler and Perry have reached an impasse over whether their agency should provide
family planning services to girls under age 18 who are afraid to tell their parents that
they are seeking birth control. Tyler threatens to quit the agency if he does not get
his way. The mediator asks both clients whether talk of quitting the agency is helpful
to the mediation process.
d. During mediation of a bullying allegation, Zoe keeps interrupting Oliver. The medi-
ator reminds Zoe that they agreed not to interrupt the other as one of their guide-
lines for communication.
4. GOOD MATCH: Nia (age 82) and Josh (age 79) are neighbors in a nursing home. Nia
has mild cognitive impairment. She is generally happy, but she thinks in very concrete
terms and has trouble with insight. Josh is mildly depressed and looks at the world from
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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a very pessimistic perspective. They both hate each other. Nia thinks Josh has a crude
sense of humor. Josh dislikes everything about Nia: her loud dresses, her whiney voice,
her bouffant hairstyle, and so on. Their constant arguing is having a negative effect on
other residents and staff, so the nursing home administrator refers them to mediation. Is
Tf M appropriate for these clients? What are the potential challenges and opportunities
for a transformative mediator with Josh and Nia.
ROLE- PL AY 7.1: “GL ASS CEILING”—
EMPOWERMENT VERSUS POWER BAL ANCING
Dr. Ana Pinellas is an associate professor at Conflictia State University where she has taught
for 14 years. She believes that Dr. Cory Danson, the dean of her college, has been blocking
her promotion to full professor because she is a woman. The college has a reputation for
being sexist, with women having to be more productive than men in order to be promoted.
Dr. Danson rejects Ana’s claims, suggesting that while Ana has more than 20 publications,
her research is of inferior quality and the journals publishing her research have low stan-
dards. Ana goes to her union to grieve the case. As part of the grievance procedure, Ana and
Dr. Danson are referred to Madison to mediate the case. Ana is concerned that she cannot
advocate strongly for herself because she could get into deeper trouble. Dr. Danson is con-
cerned that Ana has a wicked temper and has unreasonable demands. He is also worried
that he might have a slip of the tongue that could get him into deeper trouble.
To prepare for this role- play, Madison should consider whether and how she will attend
to the power issues in this case. Madison could consider various methods of empowering
the parties. Initially, Ana will be reserved and will lack confidence. Dr. Danson will argue
that the case should just go to arbitration, as he has nothing to fear from a neutral arbitrator
(who just happens to be male).
Debriefing : Identify examples of a “negative conflict spiral” from the role- play. What empow-
erment shifts arose in this role- play (if any)? What other opportunities could Madison have used
to support empowerment? Where there any instances when Madison took control away from the
parties, or used power balancing rather than empowerment? Was TfM appropriate for this sce-
nario? Why or why not?
ROLE- PL AY 7.2: “PROBATION PROBLEMS”—
SELF- ABSORPTION
As part of his sentence for writing graffiti on public buildings, Greg (age 16) was required
to do community service with an organization that cleans the neighborhood. The program
director, Della, contacts Greg’s probation officer, Mr. Oliver, to ask for Greg to be removed
from the program. Della finds Greg to be an argumentative, lazy, and rude hoodlum. Greg
thinks Della is racist, tyrannical, and self- centered. Greg says he did not do the graffiti and
that he only admitted it to avoid jail time. Greg believes he has already done enough time
cleaning other people’s garbage. He thinks Della is just trying to keep him around to do
more work. Della says she cannot sign off on Greg’s paperwork because he simply hasn’t
done the work required of him. Mr. Oliver is reluctant to have Greg removed from the pro-
gram. A breach of the conditions of his probation means that Greg has to go back to court—
and possibly to jail. Mr. Oliver meets with Greg and Della to mediate a solution. At the
outset of this informal mediation, both Greg and Della are very self- absorbed, arguing their
own points, focusing on their own stories, and not listening to each other. Each feels like
an innocent victim in this conflict. This presents Mr. Oliver with an opportunity to practice

Transformative Mediation 325
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recognition strategies. Even if he cannot bring them to agreement, he thinks it would be
helpful for them to transform the way that they deal with conflict.
Debriefing : Identify three examples where the clients were not listening to each other. For each
example, which strategies did Mr. Oliver use (or could he have used) to support recognition? How
successful was this mediation? What criteria are you using to evaluate success?
ROLE- PL AY 7.3: “FUNDING FIASCO”— PROCESS ISSUES
When Chris Madhouse donated $30 million to Conflictia Shelter for the Homeless, every-
one was thrilled. The shelter planned to use the money to expand the shelter and double
the number of clients it could serve. Recently, the shelter discovered that Chris earned this
money from a fraudulent Ponzi scheme. Edie, the executive director wants to return the
money to those who were defrauded. Devon, a key member of the board of directors says
there is no legal responsibility to return the money and the shelter is putting the money to
good use, not putting the money in any private pockets. Edie and Devon have a long his-
tory of conflict. Edie questions Devon’s ethics. Devon believes Edie lacks leadership abili-
ties, including the ability to make tough decisions for the good of the agency. Both have
trouble listening to each other. Each likes things done his or her own way. They hire Midge,
a mediator, to help them transform the way they deal with conflict. For this role- play, Midge
will help Devon and Edie make decisions about the mediation process, timing, topics, and
goals. Initially, Devon and Edie will have difficulty agreeing on anything. To Devon’s dis-
may, Edie will keep going off on tangents.
Debriefing : Which indicators of empowerment were manifest in this role- play? How did the
mediator contribute to, or detract from empowering the parties? If Midge were to use a more
settlement- focused approach, what meeting guidelines would she have suggested? Compare these
guidelines to the ones that Edie and Devon decided.
MAJOR ASSIGNMENT
Assignment 7A: End- of- Life
The participants for this role- play are Maureen, Wendy, and Farouk. Maureen is a media-
tor who has been hired to help Wendy and her father- in- law, Farouk, decide how to handle
health decisions for Wendy’s husband, Habib. Two years ago, Habib suffered a traumatic
brain injury as a result of a motorcycle accident. Doctors have told Wendy that he is in a
persistent vegetative state. Recently, she has been thinking about having feeding tubes and
ventilators removed, allowing Habib to “die with dignity.” Farouk questions the doctors’
prognosis, believing that Habib will recover, given time and Allah’s will. He vehemently
opposes removal of Habib’s life supports. He threatens to go to court or to the Conflictia
legislature, “I will do whatever it takes to ensure that Wendy does not try to murder Habib.”
Wendy is Habib’s next of kin. Habib has no advanced directives and has not appointed
a durable power of attorney (in other words, there are no written instructions about his
wishes or who should make decisions on his behalf ). Wendy is agnostic. Farouk is Muslim
(religions of the parties could be changed for the purposes of this role- play). Both Wendy
and Farouk have consulted lawyers.
Wendy’s Confidential Facts
Wendy loves Habib dearly. She feels like she has been mourning his loss for the past 2 years.
Although Wendy hoped he would somehow recover, she has come to accept that he will

326 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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remain in a persistent vegetative state until he dies. Wendy does not wish to disrespect
her father- in- law, including his religion. However, she has never felt respected by him. He
opposed Wendy’s marriage to Habib from the outset since she was not Muslim and not
willing to convert. Wendy believes there is a God, but she does not practice any religion.
She is uncertain about what happens after death, but she believes that no God would want a
person to be kept alive on “artificial supports.” Habib’s work was the family’s primary source
of financial support. Wendy has two young children (2 and 4 years old). She is barely able
to make ends meet on her salary as an assistant manager in a fast food restaurant. Medical
bills are also taking a toll on Wendy’s ability to support her family. She cannot afford to go
to court and pay for an attorney. She thinks there might a “Death with Dignity” attorney
who would be willing to represent her on a pro bono basis. Wendy does not know much
about Islam and she certainly does not understand why Farouk is so opposed to removing
the artificial life supports. Wendy firmly believes that Habib would want her to allow him
to die. Habib felt ambivalent about religion ever since Wendy met him. She does not think
he would care what Islamic law says about removing life supports. Wendy trusts the medi-
cal staff who have been taking care of Habib. They support her decision to remove the life
supports. Regardless of what happens in mediation, you plan to go ahead with asking the
medical staff to remove his life supports. Wendy knows nothing about Tf M, but she agreed
to try it to see if the issues can be settled without going to court. She knows that Farouk is
not comfortable speaking with women. She also knows that she can get a rise out of him
by talking about liberal ideas, including women’s rights, freedom of religion, and a person’s
right to die with dignity. She sometimes refers to him as “old man” or “my very estranged
father- in- law.”
Farouk’s Confidential Facts
Farouk is outraged that Wendy would consider removing Habib’s life supports. Habib is
Farouk’s only son and he has a right to live. As the Qur’an (17:33) says, “Do not take life,
which Allah made sacred, other than in the course of justice.” He believes that euthanasia is
equivalent to murder. Farouk believes that Wendy hates Muslims and the Islamic religion.
He believes that Wendy turned Habib against his own religion. Farouk thinks that Habib
may be in a coma and that people in a coma can fully recover. He consulted with his imam
who said, “Miracles can happen. People should not interfere with Allah’s wishes.” When
Farouk is angry, he tends to raise his voice and bang his fist on a table. Wendy triggers his
anger when she insults him or his religion. Farouk has money to hire the best lawyers and
take the case to court. He also has money to help pay for Habib’s care. He has not offered
financial help to Wendy because he thinks she would simply use it to buy “foolish things for
herself like makeup and skimpy dresses.” Farouk sees Wendy as irresponsible and irrever-
ent. He would like to have a better relationship with his grandchildren, but he does not
know how to raise this topic with Wendy. He thinks she is blocking contact so that he can-
not introduce the children to Islam and their native culture.
Maureen’s Confidential Facts
This scenario involves a conflict of values, religious beliefs, and personalities. You may
not be able to help them reach agreement on whether to remove Habib’s life supports.
However, as a transformative mediator, that is not your goal. Identify possible ways that
you can facilitate empowerment and recognition. Consider the empowerment and rec-
ognition strategies listed under Key Points in this chapter. Select four or five transforma-
tive strategies that you want to practice (e.g., modeling active listening, helping parties

Transformative Mediation 327
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access useful information, helping clients identify decision points). Remember that there
is no fixed order of phases or skills to be used for Tf M. Through close listening, you may
identify opportunities for transformation. Support these opportunities rather than forcing
them on the parties. W hen you watch your video and debrief, identify occasions when you
supported empowerment or recognition, as well as opportunities where you could have
used them.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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328
328
C h a p t e r e i g h t
family Mediation and
a therapeutic Approach
LEARNING OBJECTIVES
Upon successful completion of this chapter, you will be able to:
• Describe how mediation may be applied to various forms of family conflict.
• Identify ways in which legal, psychological, and cultural issues need to be taken into
account in family mediation processes.
• Use premediation and caucusing to assess clients, prepare them for mediation,
address power and safety issues, and work with their attorneys.
• Incorporate therapeutic strategies and skills from family systems therapy, rational-
emotive behavior therapy, narrative therapy, and solution- focused therapy into
family mediation processes.
• Determine whether and how to involve children in mediation processes.
In this chapter, we focus on mediating conflict among family members, with particular focus
on mediation in separation and divorce situations. This chapter embraces a broad definition
of family, including people related by blood, marriage, guardianship, and adoption, as well as
people who view themselves as family because they live together, share bonds of intimacy, love
one another, or accept responsibility for the care of one another. When working with fami-
lies, mediators may use a broad range of approaches, including the interest- based, settlement-
focused, and transformative models described in earlier chapters. This chapter highlights a
therapeutic approach to mediation, not because it is the only or best approach for working
with families, but rather because it is an approach that was developed specifically for family
mediation.1 While other models of mediation may be used with families, therapeutic media-
tion (TpM) deals with particular family dynamics, including the strengths, vulnerabilities,
1 Therapeutic mediation approaches have also been used in nonfamily contexts such as victim- offender medi-
ation (Hallevi, 2011); however, these models are not as well developed as therapeutic family mediation.

Family Mediation and a Therapeutic Approach 329
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roles, rules, norms, transitional challenges, and interactive
nature of families (Emery, 2011). Whereas a settlement-
focused approach emphasizes legal rights and responsi-
bilities of family members, for instance, a TpM focuses
on the their wishes, needs, roles, and functions as fam-
ily members. TpM addresses psychological, emotional,
and relational issues in order to improve interactions and
family functioning (Moore, 2014). TpM helps clients
process feelings such as hurt, anger, and frustration. TpM
also helps clients renegotiate their relationships, including the rules, roles, and boundaries
that govern their family interactions (Irving & Benjamin, 2002/ 2012). In other words, thera-
peutic mediators help families manage the turbulence of change (L. Parkinson, 2011), nour-
ishing and relaunching relationships beyond their ruptures instigated by separation (Molgora,
Ranieri, & Tamanza, 2014). TpM shares certain strategies with transformative mediation; for
instance, both approaches allow for storytelling, validation, relationship healing, and empow-
ering clients to make their own decisions. Therapeutic mediators also use a number of strat-
egies that extend beyond the transformative model: assessing clients, providing individual
sessions to help clients address underlying emotional and psychological issues that are affect-
ing each client’s ability to mediate, setting ground rules to ensure that parties feel safe, and
making use of specific therapeutic techniques within the mediation process. In contrast to
transformative mediators, therapeutic mediators tend to take greater control over the media-
tion process. Therapeutic mediators believe that clients would replicate dysfunctional pat-
terns or communication if mediators simply allow them to determine how to interact during
mediation (Kjøs, Tjersland, & Roen, 2014). Therapeutic mediators acknowledge their influ-
ence on clients, including the mediation process and their decisions (Fong, 2015). Whereas
most mediation models focus on the future, TpM recognizes that it may be important to help
clients deal with the past before they can move onto the future. When clients are experiencing
acute grief, loss, or anger, they may have difficulty contemplating the future and reconstruct-
ing their lives (Emery, 2011).
A mediator could explain TpM to separating clients as follows:
Separation can be a very challenging time. It is a time of transition and sometimes, great
turbulence. It is also a time when parents need to make important decisions about their chil-
dren, their finances, and their own futures. Mediation is designed to help you construct good
decisions for your children and for yourselves. I am not here as a judge or as an attorney, but
rather as someone who can help you explore what has been going on and what arrangements
you would like to make for the future. If you have been experiencing sadness, anger, frustra-
tion, or hurt, we can use mediation to work through these feelings. If you are frustrated with
the conflict in your relationship, we can use mediation to learn new ways of communicating ,
managing conflict, and transforming your relationship. I am here to listen. I am here to offer
support. I am here to help you move forward with your lives.
TpM is most often used by mediators with backgrounds in psychology, social work, fam-
ily counseling, or mental health. They possess the training, knowledge, and skills to apply
specialized therapeutic techniques in a competent manner (Emery, Rowen, & Dinescu,
2014). One of the debates about TpM relates to the boundary between therapy and TpM.
Mediators are not supposed to engage in dual relationships with parties, so it would be
unethical for a mediator to act as a therapist for the same clients (Association of Family
and Conciliation Courts, 2000). Proponents of TpM suggest therapeutic mediators pro-
vide mediation in a therapeutic manner, but do not cross the boundary into providing
The greatest thing in family life
is to take a hint when a hint is
intended— and not to take a
hint when a hint isn’t intended.
—Robert Frost
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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therapy (Irving & Benjamin, 2002/ 2012). The main critique of this approach is that the
blending of roles may be confusing to clients (E. Katz, 2007). If the mediator delves into
relationship or psychological issues from a therapeutic perspective, then could one client
exploit the vulnerabilities exposed by the other party during the negotiation and problem-
solving stages of mediation? If the mediator is assessing the clients from a therapeutic
perspective, could this lead to mediator biases in helping the parties come to agreement?
As you read this chapter and engage in the role- plays, consider what it means to be a thera-
peutic mediator, as well as how to define the appropriate boundaries between TpM and
therapy.
In some forms of family mediation, mediators with mental health backgrounds comediate
with mediators who have legal, financial, or accounting backgrounds. This allows the mediator
with the mental health background to focus on relational issues (e.g., how a child of will be
co- parented by divorcing parents), while allowing the other mediator to focus on issues of a
financial nature (e.g., child support, spousal support, tax and estate planning, and division of
property).
This chapter begins with an overview of how mediation may be used in a range of family
contexts (Malek & Burgess, 2013). The following section explores specific areas of knowledge
that are particularly important for mediation in the context of separation and divorce. The third
section describes TpM strategies that may be used in individual meetings with clients and their
attorneys. The balance of the chapter describes specific therapeutic models and strategies that
can be incorporated in TpM with families, as well as ways to engage children in the mediation
process. This family mediation chapter does not delve into the general phases of the mediation
process, as this information has already been covered in prior chapters.
CONTEXTS FOR FAMILY MEDIATION
Mediation has been shown to be helpful in a range of family conflict situations, includ-
ing separation, divorce, marital conflict, prenuptial arrangements, parent– youth conflict,
child protection issues, elder care and guardianship, end- of- life decision making, family
business disputes, and estate planning. As this list suggests, family conflict often arises in
the context of life transitions such a marriage, separation, death, and movement through
adolescence and other stages of the family life cycle. Mediation can be used to help
families manage the instability, anxiety, and stress that often accompanies such changes
(L. Parkinson, 2011). It can also help families renegotiate their roles and relationships
within the family as these transitions occur (Irving & Benjamin, 1995). Note that a
divorced family is still a family (Emery, 2011), even though the rules, roles, and relation-
ships may have changed.
Separation and Divorce
The term family mediation is mostly commonly associated with mediation for families going
through separation and divorce. During separation, families are faced with a number of legal,
relational, and emotional tasks and challenges (Taylor, 2010). Legal issues include custody,
visitation, child support, alimony, division of family property, and possession of the marital
home. Custody has two dimensions: Legal custody refers to which party(ies) will have the
legal authority and responsibility to make major decisions for the children (e.g., education,
religion, health decisions); physical custody refers to where the children will reside (e.g.,
primary residence with mother or father). Joint legal custody signifies that both parents
will share responsibility for making major decisions. Sole legal custody refers to one par-
ent having responsibility. Visitation denotes how time will be shared with the nonresident

Family Mediation and a Therapeutic Approach 331
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parent.2 Visitation rights also include access to information about the child’s health, edu-
cation, religious upbringing, and other information. Australia, California, and a number
other jurisdictions have replaced legal terms such as custody and visitation with more fam-
ily friendly terms such as family responsibilities, time sharing, and parenting plans (Emery
et al., 2014). This language is intended to promote collaboration and focus on the needs of
the child, removing connotations of child custody as a parental right for which each parent
needs to fight (Singer, 2014). Child support refers to the financial obligations of the non-
resident parent to pay for the needs of the child. Alimony indicates the financial obligations
of a higher- earning person to provide period support payments to a former spouse to help
pay for the former spouse’s needs.3 Division of property refers to how the former spouses will
split their assets, including their home, bank accounts, investments, retirement savings, and
personal property. Possession of the matrimonial home means the resident spouse continues
to live in the family home with the children until a specified time, for instance, when they
reach the age of majority or graduate from college.
Dealing with the legal tasks upon separation and divorce is complicated by relational
and emotional issues (Nichols, 2013). The parties are transitioning from their former
roles as spouses and parents living together as an intact family to their new roles as sepa-
rated spouses and co- parents living apart. They may be experiencing an array of emotions,
ranging from heightened anger, anxiety, and frustration to hurt, disappointment, and loss.
Although parties may also experience relief, freedom, and happiness, there is generally
some period of dealing with more challenging emotions. Positive readjustment typically
takes 2 to 3 years following separation (Cleak, Schofield, & Bickerdike, 2014). Family
mediation is designed to help parties manage the legal, relational, and emotional issues
that arise in the separation process. Specifically, mediation has been found to help separat-
ing families
• develop clear, detailed, personalized, and balanced arrangements that promote the well-
being of all parties following divorce,
• follow through on agreements without needing to go to court (thus, reducing legal costs),
• reduce parental conflict and enhance parental collaboration, and
• enhance involvement of the nonresident parent (often the father) following divorce
(Baitar et al., 2013; Emery et al., 2014; Lowenstein, 2009; Molgora et al., 2014; Pruett,
Ebling, & Cowan, 2013).
The research evidence is mixed, at best, on whether mediation contributes to the long- term
emotional and psychological well- being of the children and parents (Emery, 2011; Pruett
et al., 2013). One of the strongest predictors of post- separation adjustment for children is
the level of conflict between their parents. So, to the extent that mediation can lower con-
flict, children should benefit. Certainly, there are many factors affecting the outcomes of
family mediation, including which model of mediation is used, the experience and skills of
the mediator, and the level of conflict at the time the parties enter mediation (Lowenstein,
2009). Research evaluating the effectiveness of mediation often compares the experiences
2 Resident parent refers to the parent with whom the children have their primary residence. Sometimes, this
parent is called the custodial parent. The other parent may be called a nonresident parent or noncustodial par-
ent. Unfortunately, these labels have negative connotations, suggesting the custodial parent “has possession”
of the child, or the nonresident parent is somehow less important than the other parent. In practice, it is
preferable to use the parents’ names (e.g., Mary, Frank, Mom, Dad) rather than these labels.
3 The paying spouse could also pay a one- time lump sum in lieu of ongoing support payments.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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332 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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of parties going through mediation with parties going through court. The financial and
emotional costs of going through a polarizing court trial are typically much higher than
those in mediation (Lowenstein, 2009). It is important to note, however, that relatively few
separation and divorce cases make it to the trial stage. Most often, attorneys help the par-
ties negotiate a solution (Ferguson, 2013). Also, administrative judges in the family court
system may facilitate agreement through settlement conferences.
Although family mediation frequently comprises parents who were married or lived
together, family mediation could include parents who have never married or lived together.
Family mediation may also involve same- gender couples, stepparents, grandparents, sib-
lings, and other family members seeking custody or visitation (Emery et al., 2014). In addi-
tion, parties seeking custody or access may include surrogate mothers, egg donors, sperm
donors, and family members with no genetic ties (DiFonzo & Stern, 2013).
The legal and psychological issues may vary depending on who is involved in the media-
tion process. In some jurisdictions, for instance, grandparents have no legal right to access
or visitation, though it may be in the child’s best interest for grandparents to have some role
in their lives. Similarly, a stepparent who helps raise a child but has not legally adopted him
may be at a legal disadvantage in relation to the biological parents’ rights. Mediators may
include people in the mediation process whether they have custodial or visitation rights
recognized by relevant family laws. Mediation may be based on interests and relationships
rather that extend beyond basic legal rights.
Marital Conflict
Whereas divorce mediation is designed to help couples separate, mediation of marital
conflict can be used to help couples remain together (E. Katz, 2007). When couples seek
assistance for marital relations, they typically employ marriage therapists rather than medi-
ators. Such therapists may use mediative strategies (i.e., as emergent mediators rather than
as formal mediators). Consider a couple that disagrees about how to raise their children,
particularly in terms of setting limits and enforcing them through various forms of disci-
pline. A marriage therapist could teach the couple conflict resolution skills and model them
by helping them negotiate more effectively. For instance, the mediator could help them
use I- statements and listen to each other’s views about parenting. The mediator could also
help them identify underlying interests: “When all is said and done, what are the most
important lessons that you want your children to learn?” Blending a mediative approach in
therapy, family counselors can help couples reflect on their emotional experiences, develop
insights, strengthen their spousal relationship, improve communications, and manage
particular conflicts more effectively (Baitar, Buysse, Brondeel, De Mol, & Rober, 2012).
A mediative approach to martial therapy acknowledges conflict is a normal part of marriage.
The purpose of the mediative interventions is not to eliminate conflict, but rather to trans-
form the way that couples engage with it. Mediation approaches can strengthen the couple’s
capacity for decision making, helping them appreciate each other and their reducing stress
in dealing with conflict (Folger et al., 2010).
Prenuptial and Cohabitation Arrangements
Couples may use prenuptial or cohabitation agreements to make decisions about child
custody, visitation, support, alimony, and division of property in the event of separation
or divorce. A primary advantage of entering such an agreement prior to or during mar-
riage is that the parties have a positive, loving relationship. They are not experiencing the
stress, anger, frustration, hurt, or sense of loss that frequently accompanies separation. By

Family Mediation and a Therapeutic Approach 333
333
dealing with important decisions while relations are good, couples can pre- empt or mini-
mize future conflict. About 3 percent of American couples have a prenuptial agreement
(Kennedy, 2014). Requests for prenuptial agreements are often initiated by a spouse with
higher wealth or income, wanting to protect his or her assets, or ensuring that any personal
or family business is not put at risk by the possibility of divorce. Couples who do not marry
may decide to enter cohabitation agreements because the laws do not provide them with the
same protections that legally married spouses have. Although both prenuptial and cohabi-
tation agreements can be legally enforceable, they may be challenged on a number of bases.
First, a contract may be nullified due to coercion, misrepresentation, fraud, or withholding
information. Prenuptial and cohabitation agreements are more likely to be enforced if each
spouse or partner has independent legal advice. Independent legal advice ensures that both
parties understand the legal ramifications of the agreement, as well as their rights under the
law (Kennedy, 2014). Further, courts are not bound by the terms of a prenuptial or cohabi-
tation agreement in relation to child custody, visitation, and support. The court may con-
sider the terms of any agreement, but ultimately, a court’s decision is based on the child’s
best interests. Prenuptial and cohabitation agreements may be useful even if certain terms
are not legally enforceable. Ideally, both spouses feel the agreement is just and balanced,
making them more likely to abide by the agreement without challenging it in court.
Although spouses can enter prenuptial and cohabitation agreements without the aid
of a mediator, mediators can help clients work through emotionally challenges and ensure
that they are considering all relevant issues and choices. Consider how you might feel if
your fiancé simply presented you with a prenuptial agreement, just days before your wed-
ding, and said that you needed to sign it. Mediators can help clients process feelings about
the prenuptial agreement, gaining insight into their questions, fears, and motivations.
Mediators can provide a process that is collaborative, avoiding adversarial dispositions that
might accompany lawyer- led negotiations. Mediators can also make sure that both clients
feel the process is fair and that both have sufficient input into the agreement, reducing the
chances that one spouse will challenge the enforceability of the agreement. Mediators can
help clients develop agreements on sensitive family matters that are not intended to be
enforceable in court, for instance, how many children they plan to have, how they will share
responsibility for childcare, where they will live, and how they will communicate with deal
with their in- laws. Some couples use prenuptial agreements to identify how they will use
social media and to limit what they may post online (to ensure privacy).
Parent– Youth Conflict
Mediation can be used to help families manage intergenerational issues including parent–
youth conflicts. Adolescence is often a challenging period of transition for families. As
children mature into adolescents and young adults, their needs and expectations change.
Parents may have difficulties managing these changes, particularly with respect to issues
such as curfews, house rules, chores, school attendance, homework, choice of friends, dat-
ing, and drug and alcohol use. Mediation can be used to help parents and youths renegoti-
ate their family roles, rules, and expectations. Mediation is particularly helpful in enhancing
communication and supporting family decision making (Eisele, 2003). Mediators can
help parents and adolescents express their concerns without blame or contempt, as well
as teaching them methods of listening, validating each other’s concerns, and creative prob-
lem solving. Consider, for instance, a youth who rebels against having a 9 pm curfew on
the weekends. When the mediator explores whether the issue is just about the “right time”
for a curfew, the family discovers that the underlying issues relate to trust and safety. By
focusing on these issues, they can identify ways that the youth foster trust and the parents

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can ensure their child’s safety. For instance, the youth might agree to maintain cellphone
contact and allow the parents to check in with periodic text messages. Some parent– youth
mediation programs derive referrals from the juvenile justice system; rather than prosecut-
ing youths for juvenile delinquency or status offenses,4 the police, judges, or probation offi-
cers refer parents and youths to mediation to resolve issues within the family milieu (Bush,
Hershman, Thaler, & Vitkovich, 2009).
Child Protection Issues
In child protection mediation,5 parents, children, child protection workers, and other stake-
holders may be brought together to deal with alleged or substantiated child protection issues.
The purpose of child protection mediation is not to determine whether abuse, neglect, or
abandonment has occurred, but rather to develop a plan to ensure that children’s safety, sta-
bility, and welfare are protected into the future (Aguiniga et al., 2015). Conflicts may arise
at various levels. Initially, conflict between the parents and child protection worker may
center on disputes about whether certain forms of maltreatment have occurred, or what
is necessary to prevent future maltreatment. When child protection allegations are raised,
parents often feel defensive. Child protection mediation can be used to help engage parents
and protection workers, building trust, de- emphasizing blame, focusing on the future, and
fostering collaboration (Giovannucci & Largent, 2013). Conflict may also arise between
the parents and foster parents or group home workers, including disputes over how and
when the parents may communicate or meet with their children while they are in care.
Children may have concerns about their treatment while in care (quality of care and place-
ment stability), as well as questions about how they may be reunited with their parents.
Children’s voices may be brought into the mediation process directly, or through the aid of
an advocate such as a guardian at litem or court- appointed special advocate.
Research suggests child protection mediation offers a number of benefits, such as
• empowering parents and children with an opportunity to be heard in a fair and balanced
process;
• resolving cases without the need to go to court, facilitating permanency planning in a
timelier manner and reducing adversarial relations between families and the child protec-
tion system;
• engaging parents, extended family members, friends, and community services to partici-
pate more fully in the planning and care of children in need of protection; and
• improving parental compliance with treatment plans (Giovannucci & Largent, 2013).
The benefits of mediation vary with the model of mediation used. Whereas a settlement-
oriented model focuses on settling cases so they do not need to go to court, therapeutic and
transformative models focus on enhancing communication and fostering better working
relationships between families and the child protection system. Mediation helps level the
power differential, as child protection workers may be less likely to exert power with the
presence of a neutral third party. During mediation, mediators can ask protection work-
ers to use clear language to explain agency rules, parent rights, and options for resolving
4 Juvenile delinquency offenses are criminal charges, such as theft or assault, which may be made against
people of all ages. Status offenses are noncriminal charges, such as breaching curfew or missing school,
which can only be made against minors (people under age 18).
5 Child protection mediation is sometimes called dependency mediation.

Family Mediation and a Therapeutic Approach 335
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cases (Patterson, 2009). Mediators can also help parents and protection workers develop
and articulate creative treatment plans focusing on the child’s best interests. Note that the
concept of confidentiality is different in child protection mediation than in other contexts,
given the potential vulnerability of the children. Protection workers are mandated to pro-
tect children from maltreatment, so they may need to act on information learned in the
mediation process. Thus, parents know that information shared in mediation could be used
in future court proceedings. Still, the mediator encourages both parties to share informa-
tion in mediation, as open communication in mediation may prevent cases from having to
go to court. To the extent that the parties trust each other in mediation, they can actually
safeguard the privacy of the family.
Elder Care and Guardianship
Elder care and guardianship mediation may be used when family members have concerns
about an elder’s mental and physical abilities to care for herself (Wall & Spira, 2012). Ideally,
the elder person has mental capacity at the time of mediation and the family can jointly plan
for the elder person’s future care in a non- crisis situation. Often, however, the elder’s mental
capacity is in question or a crisis situation has arisen, for instance, the elder has fallen and
broken a hip, and family members are having a conflict regarding who is responsible and
how they will care for her. If the elder has mental capacity, the elder can represent herself
(with or without the aid of an attorney). If the elder has diminished mental capacity, then
an advocate may participate on the elder’s behalf. Issues that may be handled in mediation
include decisions about healthcare, end- of- life decision making,6 funeral planning, finan-
cial concerns, estate planning, religious preferences, living arrangements, driving and trans-
portation, and allegations of elder abuse or neglect (Barry, 2015; Braun, 2012; Bagshaw,
Adams, Zannettino, & Wendt, 2015). Families may have conflicts over whether an elder
family member needs guardianship, as well as what form of guardianship or care the elder
needs (Wall & Spira, 2012). Although guardianship mediation is often initiated because of
legal issues, such as who will be legally responsible to make decisions for the elder person
(Murphy & Rubinson, 2009), mediation may also deal with the underlying causes of family
conflict (e.g., sibling rivalry, financial stress, elder abuse, or differences in values). Elder care
mediation could also include professional or paraprofessional caregivers, particularly when
there are concerns about the quality of institutional or homecare providers. Premediation
is particularly important in elder care cases, as the mediator needs to determine whether
the elder person has cognitive or social challenges that necessitate having an advocate or
other accommodations to the mediation process. If there is conflict over whether the elder
person has sufficient decision- making capacity, the mediator could refer the clients to a
mental health specialist to provide a cognitive capacity assessment (Barry, 2015). Further,
the mediator should assess whether mediation can be offered in a safe and fair manner,
given the potential for issues such as elder abuse and coercion (Bagshaw et al., 2015; Braun,
2012). In addition to ensuring the elder person has an advocate, mediators can enhance
participation of elders by slowing down the process, holding sessions during a time of day
when the elder is best able to participate, ensuring the elder person understands the pro-
cess, and providing individual sessions to allow that elder to express concerns that may be
difficult to discuss in joint sessions.
6 For instance, decisions about whether the elder will be maintained on feeding tubes, respiratory aids, or
other life supports, as well as decisions about the timing and manner of dying (in jurisdictions that permit
euthanasia) (Barsky, 2010; Braun, 2012).

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Potential advantages of elder mediation include
• empowering elders and family members to make decisions for themselves rather than
giving this responsibility to courts;
• reducing family conflict;
• teaching elders, family members, and care providers how to resolve problems jointly;
• developing individualized plans to meet the needs and interests of the elders, family
members, and care providers;
• resolving issues in a less costly and more collaborative manner than in courts (Bagshaw
et al., 2015; A. Crampton, 2013).
End- of- Life
End- of- life mediation can be particularly challenging because it raises a complex combina-
tion of legal, ethical, moral, religious, and emotional issues (Murphy & Rubinson, 2009).
Consider a family that is demanding a particular surgical treatment for an elder parent; the
physicians, hospital ethics committee, and insurance company are refusing to comply with
their wishes because they view treatment as “futile.” Given religious beliefs and emotional
issues, family members may not be ready to accede to medical advice. They feel compelled
to do everything they can to help their parent survive. Given constraints of what is possible
medically and legally, the choices may be more limited than in other contexts of mediation.
Under these circumstances, the greatest value of mediation may be in its capacity to facili-
tate understanding, respect, and closure, rather than to facilitate creative problem solving
(Bierlein, 2007). Thus, mediation may have a therapeutic effect, helping family members
come to terms with the patient’s condition and what may or may not be medically pos-
sible. Mediation may also be used to help family members consider quality- of- life issues,
including palliative care, rather than simply focusing on whether to provide curative or life-
sustaining treatment (Barsky, 2010).
Family Business Disputes and Estate Planning
In terms of family business disputes and estate planning, mediation can be used in both pre-
ventative and responsive manners. As a preventative process, mediation can bring family
members together to discuss what they would like to see happen in the event of a particular
person’s death, for instance, the primary owner or manager of the family business, or elder
parents who own a vacation home, jewelry, and other property that could become the focus
of a dispute after they pass away. Mediators may invite parties to consult with attorneys,
financial advisors, or accountants to help them make good decisions from legal, business,
and tax perspectives. Many people do not like talking about or planning for death, whether
it is their own death or the death of a family member. However, using mediation to make
succession plans for a family business or to determine what should happen to significant
family property can pre- empt conflict, strengthen family relationships, and foster a smooth
transition of management and ownership of family businesses (Baker, Lutringer, & Caras,
2015). Mediation can also help ensure that the intent of a person who creates a will is pre-
served (P. Fisher, 2010). If family members are involved in estate planning and understand
the intent of the testator, then they are more likely to follow the will, rather than challenge
it. When helping clients determine whether they want to mediate estate planning issues,
you might ask them, “When you are thinking about what you’d like your children to inherit,
do you want to leave them a messy conflict that they need to manage while they are still in
mourning, or would you rather provide them a fair, well- planned transition that promotes

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good will and peaceful family relations?” Mediators can also help clients draft ethical wills,
statements about the morals, values, or blessings that they want to pass along to their chil-
dren (Aging with Dignity, n.d.).
If families experience conflict after the testator has died, mediation can be used to help fam-
ily members resolve issues without going to court (Shell, 2013). Sometimes, the terms of a will
are general or unclear (e.g., “personal property to be divided equally”). Other times, a family
member may question whether the terms of a will were changed under coercion or without
sufficient mental capacity of the testator. Conflicts may also occur between co- executors of
the estate as they make decisions about division of the property or how to invest and preserve
it. Mediation saves families the costs of going to court, while also affording them a process
to help manage the emotional issues arising after the loss of a loved one. When dealing with
estate issues, adult siblings may re- enact sibling rivalries from when they were young children.
Disputes often arise over matters that have more symbolic value rather than financial worth
(Shell, 2013). Mediators can help parties reflect on the values and beliefs that their parents
wanted to pass along, beyond the specific items and financial value of their parents’ estate. One
of mediation’s key advantages is that families can deal with their issues in a confidential forum,
avoiding the embarrassment of a public court hearing and preventing business competitors
from learning private information about the family business (Murphy & Rubinson, 2009).
SUBSTANTIVE KNOWLEDGE BASE
FOR FAMILY MEDIATORS
In some contexts of practice, mediators do not necessarily require knowledge of the sub-
stantive issues they are mediating. For instance, a community mediator who is handling a
neighbor– neighbor dispute over a barking dog does not need an intimate knowledge of
what causes dogs to bark or what laws govern this type of dispute. The mediator needs to
be an expert in the mediation process rather than the substance of the dispute. If the parties
require information about the cause of barking or the laws pertaining to nuisance and noise
ordinances, the mediator can help them gain access to this information. In divorce and
other realms of family mediation, however, knowledge of substantive information pertain-
ing to the conflict is very important. Given the vital legal ramifications of divorce, child pro-
tection, juvenile justice, and other forms of family mediation, mediators should know about
the legal frameworks in which these conflicts arise and can be resolved. Consider a media-
tor who facilitates an agreement whereby the parents trade visitation time with the child for
lower child support payments. This agreement may not be in the child’s best interests and
could be overturned by the courts. Although mediators are not responsible for providing
legal advice, it would be helpful for the mediator to know enough about the legal framework
to raise questions, invite the parents to access legal advice, or help them determine whether
their proposed agreement in is the child’s best interests. Similarly, it is helpful for mediators
to have some knowledge about the emotional issues that parents experience during the
separation process. Although mediators do not provide therapy, it would be therapeutic for
mediators to demonstrate understanding about the issues that the parents are facing and to
provide information about ways that other separating families have dealt with such issues.
The types and depth of information needed by family mediators depend on the model of
mediation they are using. Evaluative mediators who intend to provide families with evaluations
of how a judge would determine spousal support, for instance, would require thorough knowl-
edge of the legislation, regulations, case law, and relevant precedents regarding spousal support.
For an interest- based mediator helping families develop a parenting plan, it would be valuable
to know creative parenting options that other families have used. For therapeutic mediators, it
would be particularly helpful to have a working knowledge of family systems, patterns of family

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communication, and power dynamics within families. Transformative mediators use a client-
centered approach, meaning that they trust clients to be experts in their own lives and empower
them to make their own decisions. Rather than providing information or expertise to families,
they may assist families in gathering information that they wish to have. Thus, it may be helpful
for transformative mediators to know trustworthy sources of information.
In most jurisdictions, there is no absolute requirement for a person to be licensed
or accredited in order to provide family mediation. However, accreditation is gener-
ally required for mediators who want to handle court- referred mediations. Further, most
attorneys will not refer clients to mediation unless the mediator is accredited by a state-
recognized authority. Each jurisdiction has its own laws defining competence and quali-
fications to be an accredited family mediator (e.g., the number of hours of training time,
supervised practice, and, sometimes, proof of competence through testing or video-
recorded role- plays). Standard II- A of the Association of Family and Conciliation Courts
(2000) Model Standards of Practice for Family and Divorce Mediation7 identifies three
areas of substantive knowledge required for family mediators:
• knowledge of family law
• knowledge of the effect of family conflict on parents, children, and other participants,
including knowledge of child development, domestic abuse, and child abuse and neglect
• knowledge of the impact of culture and diversity
The following sections provide examples of knowledge pertaining to each of these substan-
tive areas. If you intend to practice as an accredited family mediator, you will need to fulfill
the requirements of your state’s accreditation laws, which typically includes more in- depth
training in each of these substantive areas. People with legal backgrounds may already be
familiar with family laws. People with social work and mental health backgrounds may
already be familiar with many of the psychosocial and cultural issues pertaining to separa-
tion and divorce.
Legal Frameworks: Laws and Processes/ Systems
This section provides an overview of laws that are pertinent to family mediators. Because
laws vary from state to state (and may be amended from time to time), it is important to
receive training specific to your jurisdiction and to engage in continuing education to ensure
that your knowledge is kept up to date. As noted earlier, family laws cover child custody,
visitation, child support, alimony, division of property, and possession of the marital home.
Family mediators should also be cognizant of child protection laws, particularly the duty
to report reasonable suspicions of child abuse or neglect. In addition, mediators should
be aware of laws protecting the confidentiality and privilege of mediation and related pro-
cesses (Simon & Willick, 2016). In general, laws governing court- referred mediation estab-
lish privilege, meaning that information shared in mediation cannot be used in future court
processes. These provisions are designed to encourage clients to be open and honest in
mediation, without fear that anything they share can be used in court (i.e., the mediator
7 Note that the Association of Family and Conciliation Courts (2000), Family Mediation Canada (n.d.),
Conflict Resolution Education Connection (n.d.), and Academy of Professional Family Mediators (2014)
are voluntary professional associations. Their codes of ethics, professional guidelines, or standards of prac-
tice are not legally required for all practitioners, although states and provinces may incorporate these or
similar provisions into their regulatory laws.

Family Mediation and a Therapeutic Approach 339
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may not be compelled to testify in court unless all parties waive their right to privilege).
Family mediators should also define confidentiality and its limits in the agreement to medi-
ate, so the parties are clearly informed about these expectations. If there are no laws pro-
tecting the privilege (for instance, because the case is not court- referred or because the
mediator is not accredited), then confidentiality provisions in the agreement to mediate
may protect the privacy of the information shared by parties in mediation; however, courts
could overrule the confidentiality provisions in such contracts.
The family laws in most jurisdictions suggest that decisions about child custody and
visitation should be made on the basis of the child’s best interests (Murphy & Rubinson,
2009). Family laws typically identify factors to be considered when determining the best
interests of the child, for instance, the child’s age and developmental needs, each parent’s
capacity to provide for these needs, the child’s wishes (depending on the age and abil-
ity of the child to express preferences), the length of time the child has lived in a stable
environment, domestic violence, the emotional ties between the child and each parent,
and the willingness of the parent to encourage the child to maintain a close relation-
ship with the other parent. The statutes do not prioritize the factors, leaving judges with
broad discretion on how to apply them. For a listing of family law statutes and com-
parisons between states, see the American Bar Association (n.d.) website (http:// www.
americanbar.org/ groups/ family_ law/ resources/ family_ law_ in_ the_ 50_ states.html).
Courts may also consider additional factors not specifically listed in the legislation. Some
statutes identify particular factors that may not be considered, for instance, prohibitions
against assuming maternal or paternal preference, or prohibitions against determining
best interests based on the socioeconomic status of either parent. If parents are focusing
on their own needs and interests, mediators may invite them to focus on the best interests
of the child, including the factors that the laws say should be considered. Mediators can
also help family members reframe custody and visitation as parenting plans, focusing
on practical issues such as who will be responsible for making which decisions, where
will the child’s primary residence be, and how will the parents share time with the child
(Singer, 2014). Table 8.1 includes a comprehensive list of topics that may be included in
parenting plans. Some courts have particular formats and topics that need to be included
in parenting plans. For further information on parenting plan topics and formats, see
the Association of Family and Conciliation Courts website (http:// www.afccnet.org/
Resource- Center/ Resources- for- Professionals).
TABLE 8.1. Parenting Plan Topics
1. Child’s primary Residence 2. time- sharing schedule (regular)
3. primary Decision- Making Responsibility
(for education, health, religion, after-
school activities, summer activities, etc.)
4. time- sharing (holidays, vacations,
birthdays, and other special occasions)
5. Authorized Caregivers (extended family,
babysitters, other)
6. parenting guidelines (curfews, house
rules, expectations of child, manner of
discipline)
7. Communication between parents 8. Access to Information about Child
9. Authorization for travel with Child 10. Addressing special Needs of Child
11. Dealing with emergency situations 12. Addressing Changes (and preferred
methods of resolving conflict)
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Although some jurisdictions give preference to joint custody (Brinig, Frederich, & Drozd,
2014), custodial decisions should ultimately be made on the basis of each child’s particu-
lar needs and the parents’ abilities to meet these needs. If parents seem to have unreason-
able expectations about joint or sole custody, mediators could refer them to their attorneys
for advice about whether a court would be more likely to order joint or sole custody. For
instance, in high- conflict situations, judges may be reluctant to order joint legal custody
because such an arrangement could increase the conflict and put the child at greater psy-
chological risk. When a child has been living primarily with one parent for an extended
period, judges may be reluctant to upset the status quo. To avoid taking sides, mediators can
refer clients to their attorneys, rather than directly providing this information to the clients.
Mediators also need to be careful that they are not overstepping their professional roles by
providing legal advice. Mediators may invite families to consider creative options for par-
enting plans; for instance, one parent may assume primary responsibility for healthcare, the
other parent may assume primary responsibility for education and after- school activities,
and they may share responsibility for religious upbringing.
When cases go to court, judges often identify which parent or parents will have cus-
tody and which parent will have visitation, without going into a detailed parenting plan.
Mediation allows parents to go into greater detail, covering topics such as how the parents
will share holidays and special occasions with the child, guidelines for household chores
and bedtimes, dietary issues, details for dropping off or picking up the child from the other
parent, strategies for parental communication, and values or morals that the parents agree
to model for the children. Parents can be very creative in their parenting plans.
Most jurisdictions have child support guidelines that define minimum child support
payments; parents may agree to higher amounts depending on the child’s needs and the
parents’ priorities (Ehrlich, 2013). Mediators may ask the parties (with the assistance
of their attorneys) to share financial information and make child support calculations.
Mediators should be aware of the formulas used to calculate support payments. Some
state’s guidelines calculate support based on the nonresident parent’s income; others cal-
culate support based on a sharing of both parent’s income. Calculations can be compli-
cated by factors such as shared physical custody, childcare costs, nonstandard medical
costs, costs of post- secondary education, and tax considerations (e.g., which parent may
claim a dependency exemption or child tax credit). Various statutes also define circum-
stances in which courts may deviate from the usual formulas for child support (e.g., higher
payments to support a child with special needs). For a link to the guidelines in your state,
see the National Conference of State Legislatures (2016) website (http:// www.ncsl.
org/ research/ human- services/ guideline- models- by- state.aspx). If a mediator does not
have a firm grasp of child support guidelines, then it may be better to have the clients’
lawyers negotiate this issue. In addition to child support payments, parents may agree
to pay directly for particular items (e.g., winter clothes, summer camp, or dental insur-
ance). Child support payments are typically easier to enforce, as wages can be garnished
if the nonresident parent falls behind on support payments. Some mediators encourage
parents to mediate based on a “cost- sharing approach” rather than based on the parents’
incomes. Under this approach, the parents develop a budget for the child’s needs and
then determine how each parent will contribute to the child’s needs. By framing child
support in terms of the child’s needs, the problem- solving process fosters greater parental
cooperation (Murphy & Rubinson, 2009). Parents who collaborate well could establish a
child’s checking account, where both parents contribute to the account each month and
each parent has authority to use money from that account for expenses directly related
to the child’s needs. The child’s budget could be reviewed periodically to ensure that the
account has sufficient funds and that the child’s needs are being met. Although a court
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 34 1
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could overturn a child support agreement that offers lower support than that required
under the state’s child support guidelines, a court may be hesitant to do so if both parents
are content with the agreement. After all, aren’t the parents in the best position to deter-
mine what is in the child’s best interests?
The purpose of alimony is to balance the difference in earning capacities between
divorcing spouses, particularly where one spouse has given up earning capacity to care for
the children and family during the marriage. Determining alimony or spousal support can
be even more complicated than calculating child support. Courts determine alimony based
on a number of factors, for instance, the income levels of each spouse, the length of time
they were married, education, employability, the earning capacity of each spouse, the age
and health of each spouse, tax consequences, contributions of each spouse to the marriage,
the standard of living established during the marriage, and the income, financial resources,
and expenses of each spouse (including housing, food, healthcare, etc.) (Ehrlich, 2013).
The weighting of these factors is not prescribed by law, giving judges broad discretion in
determining alimony. Unfortunately, this broad discretion leads to lack of coherence and
predictability of alimony decisions. The statutes and court decisions governing spousal sup-
port vary from state to state. For instance, some states still allow marital fault to be consid-
ered. Although online alimony calculators can be used to estimate support, courts (and
families) are not bound by these estimates.
Mediators who help clients with alimony issues may start by having each client com-
plete budgets and financial disclosure statements, often with the assistance of their attor-
neys. Mediators can emphasize that alimony agreements may be overturned if either spouse
does not fully and accurately disclose their income and other financial information (busi-
ness interests, investments, properties, etc.). Some states have limitations on the number of
years that alimony can be ordered. These limitations may be based on the length of the mar-
riage and, or the earning capacity of the receiving spouse. Sometimes, a portion of alimony
is provided to “rehabilitate” the receiving spouse, supplying additional financial support so
the spouse can receive education, retraining, or certification to increase earning capacity.
If a spouse stayed home during marriage to care for young children, alimony may be pro-
vided to ensure that this arrangement can continue until the children no longer require a
stay- at- home parent. If a spouse remarries, alimony may stop, although this depends on the
type of alimony (for instance, rehabilitative alimony may continue to allow the spouse com-
plete retraining or education). Most often, alimony is paid on a periodic basis, for instance,
monthly or biweekly to mirror the schedule by which paying spouse receives his salary.
Some clients agree to a one- time, lump- sum payment in lieu of periodic support. A one-
time payment allows the parties to put the issue of spousal support to rest; if either spouse’s
employment or financial needs change, they do not have a right to renegotiate spousal sup-
port. Although some states allow marital fault (infidelity, abuse, and other causes of mari-
tal breakdown) to be considered, there is a trend toward not considering marital fault as
a criterion for alimony. Where family laws do allow fault to be considered, mediators can
focus the parties on their financial needs and ability to pay, moving them away from the
blame game and a debate over who was responsible for the divorce. Mediators should note
that some jurisdictions do not recognize common law marriage, civil unions, or domestic
partnerships, so nonmarried partners may not be entitled to alimony or spousal support
(Ehrlich, 2013).
Division of family property laws also vary. Arizona, California, Idaho, Louisiana, Nevada,
New Mexico, Texas, Washington, and Wisconsin use a community property approach,
whereby all property and debts acquired during marriage are divided equally (50- 50)
regardless of who holds legal title or ownership of the property during marriage. Property
and debts acquired by each person prior to marriage or after the date of separation remain
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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with that person. If a person owns a business or stocks coming into the marriage, the
increase in value during the marriage would be divided equally. Inheritances received dur-
ing marriage are also excluded from division. For states without community property laws,
property is divided equitably rather than equally (Ehrlich, 2013). When determining what
is fair or equitable, courts may consider factors such as the financial contributions of each
spouse, the value of a spouse staying home to care for the children and family, and the
earning capacity of each spouse. Although a court may decide that a 50- 50 split is fair, an
equitable distribution could range to a 60- 40 or even a 70- 30 split.
Generally, courts cannot consider adultery, domestic violence, or other so- called mari-
tal misconduct when determining division of property (Ehrlich, 2013). Family laws typi-
cally require full disclosure of each party’s assets, debts, and income. If a spouse tries to hide
assets or inflate debts, the court may take such factors into consideration when determining
an appropriate division of property. Spouses may decide how to divide their family prop-
erty as they wish, regardless of what the family law statutes say; whereas courts retain the
right to alter child custody and support to meet the child’s best interests, courts usually
defer to agreements on division of property (unless there is evidence of coercion, fraud,
or financial misrepresentations). Identifying which property is subject to division may
require legal advice. In addition, valuing property may require assistance from property
appraisers, business valuators, and actuaries (e.g., to calculate the value of social security,
pensions, insurance, or other complex investments). Often, family mediators with mental
health backgrounds focus on parenting and relational issues, leaving the financial issues to
professionals with legal and/ or financial backgrounds.
Generally, the resident (or custodial) parent has a right to stay in the marital home with
the children until they reach the age of majority. When parents separate, they face addi-
tional costs related to having to maintain two homes rather than one. Keeping the matri-
monial home may not be financially feasible, so the parents may need to consider selling
the matrimonial home and moving into less expensive housing (Ehrlich, 2013). Mediators
can help families with creative solutions, for instance, renting the basement to help pay for
housing expenses, living together with extended family members (permanently or tempo-
rarily), or waiting to sell the matrimonial home until market prices improve. While financial
factors need to be considered, mediators can also help parents focus on their child’s best
interests, for instance, being able to remain in the same neighborhood to minimize the dis-
ruptions of divorce (allowing the child to remain in the same school and get together with
neighborhood friends). One of the most challenging situations arises when the resident
parent wants to move away with the child. There may be very good reasons for the parent’s
wish to move; however, moving makes it more challenging for the nonresident parent to
have meaningful time together with the child. Again, mediators can help parents develop
creative solutions, for instance, using video conferencing for the nonresident parent to do
homework or read to the child (LaMarca, 2012), using holidays and vacations to enhance
the time shared by the child and nonresident parent, and focusing on the quality of time
together rather than just the amount of time.
When spouses petition for divorce they are typically required to submit a parenting
plan and, or meet with a mediator to help them develop one (Arizona Supreme Court,
2009). Courts require decisions on custody and access prior to granting final orders for
divorce. Some families may need temporary court orders or agreements before they are
able to reach a more permanent solution. When mediators help clients develop agreements,
the clients may need to consult their attorneys to determine whether the attorneys should
draft a legally binding separation agreement, or whether the terms of the mediated agree-
ment should be incorporated into a court order. While separation agreements and court
orders are both legally enforceable, there may be legal advantages to one approach versus
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 343
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the other (e.g., the relative ease of enforcing a court order for child support if one spouse
falls behind on payments).
When filing for divorce, spouses identify their grounds for divorce. In states that allow
fault- based grounds, they may identify adultery, abuse, or other specified marital miscon-
duct as the reason for divorce. In most states, spouses can declare “irreconcilable differences”
as the grounds for divorce (Ehrlich, 2013). Using non- fault grounds for divorce removes
stigma and blame, encouraging spouses to focus on a positive post- divorce relationship as
coparents rather than remaining stuck in past problems. Once a divorce decree is granted,
the divorce is final. Division of property cannot be revisited unless there is proof of fraud,
misrepresentation, or coercion. Custody, visitation, child support, and spousal support can
be reviewed by the court, particularly when there are material changes in circumstances.
For child custody, material changes could include one parent developing a substance use
disorder, or the child experiencing severe anxiety as a result of ongoing conflict between
the parents. In relation to child support, the child might need orthodontic work or other
medical attention. In terms of spousal support, one party might lose a job or get married.
Mediation may be a useful alternative for helping parties deal with post- divorce issues and
changes. Sometimes, parties can make changes without having to return to court; if they
need to return to court, mediators can help them develop terms that could be submitted to
the judge for an order on consent of the parties.
At all stages of mediation, mediators should ensure that clients have access to inde-
pendent legal advice. To avoid conflicts of interest, mediators should not refer clients to
particular attorneys, although they can help them access attorneys through lawyer referral
services or lists of mediation- friendly attorneys (e.g., attorneys who are certified to practice
collaborative law). Sometimes, clients cannot afford attorneys, so mediators could provide
information about legal aid or sliding fee services (if available). If clients refuse legal advice
and want to act on their own behalf (“pro se”), mediators should document that they sug-
gested legal advice and have the client sign a section of the agreement to mediate, indicating
they declined to have legal advice. Unfortunately, many people forgo legal advice simply
because they cannot afford legal fees and cannot access free legal services (Murphy &
Rubinson, 2009). In some instances, the issues in mediation may not require legal advice—
for instance, if the parties are negotiating a cooperative parenting plan. If there are complex
legal issues, such as division of property where there is a complicated estate, mediators may
decide not to mediate unless both parties have legal counsel.
In addition to laws governing separation and divorce, mediators should consider admin-
istrative rules governing mediation in their state. For cases referred by the court, there may
be a limit on the number of sessions, limits on the issues that may be addressed in media-
tion (parenting issues vs. financial), information that the mediator must share with the par-
ties during the orientation to mediation, and particular forms that the mediator must use
(e.g., financial disclosure forms, agreement to mediate, or final agreement forms).
Psychosocial Issues
Mediators benefit from having a sound understanding of psychosocial issues that parents
and children experience during the processes of separation and divorce. When people
marry, their entire identity becomes invested in their roles as husband and wife. As wedding
vows typically express, marriage is about love, honor, and mutual responsibility for the rest
of their lives. When marriages start to falter or fail, spouses often feel a mix of guilt, depres-
sion, distress, and intimacy issues (Frisby, Booth- Butterfield, Dillow, Martin, & Weber,
2012). Stress may be exacerbated by issues such as drug and alcohol problems, financial
troubles, domestic violence, or infidelity. There are a broad range of reactions to divorce,

34 4 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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with some spouses experiencing a sense of freedom, growth, resilience, and relief. Other
spouses have much greater difficulty moving on. The experience of divorce may lead to
lower self- esteem and confidence, anxiety and mistrust around relationships, preoccupa-
tion with what others think, and heightened anger or depression (Frisby et al., 2012). By
understanding the various experiences that divorcing spouses experience, mediators can
tune in and offer empathy. Therapeutic mediators may also use therapeutic techniques (as
described in the “Therapeutic Strategies and Skills” section) to assist spouses with post-
separation adjustment issues. They may also help clients renegotiate their relationships as
co- parents rather than as spouses.
While a full exploration of psychosocial issues related to divorce is beyond the scope of
this chapter, the following sections highlight psychosocial issues related to the best interests
of the child, high- conflict divorce situations, and community resources and supports.8
Best Interests of the Child
Judges, mental health professionals, child custody evaluators, social scientists, and other
experts have long struggled with how to define and assess what is in a child’s best interests.
Each child is unique. The circumstances of separation, divorce, and the parents are also
unique. Accordingly, it would be naïve to think that there is one best parenting plan or
set of arrangements for all children following separation and divorce. Still, it is helpful for
mediators to be familiar with the typical challenges and opportunities for children who
are dealing with their parents’ divorce, not to play expert and tell parents what to do, but
rather to help the mediator raise questions that the parents may consider as they construct
a parenting plan designed to meet the best interests of their child. Mediators view parents as
experts in their own lives, including the capacity to know what is best for their child.
Research suggests that a key predictor of a child’s post- separation adjustment is the level
of conflict between the parents (Allen, 2014; Viry, 2014). When children are exposed to
high interparent conflict they are more likely to experience anxiety and other emotional
problems, difficulty establishing positive relationships, troubles at school, and conflict with
the law. Prolonged exposure to high conflict may also lead to medical concerns including
hypertension, heart disease, and infectious diseases (Allen, 2014). Thus, mediators may
invite parents to consider parenting plans that reduce levels of conflict, particularly where
there has been a history of high conflict. Consider an agreement where the child primarily
resides with mom and has “liberal access and time with dad.” If parents can collaborate eas-
ily, this open- ended, flexible form of time- sharing can work well. However, it may be too
vague for parents who continue to have high levels of distrust, anger, and conflict. They may
benefit from a more detailed, fixed plan, specifying the days and times that each parent will
spend with the child. For some families, it may be helpful to have a plan that details exactly
where, when, and how the child will go from one parent to the other, providing parents with
clear expectations and reducing the risk of further conflict (for detailed sample plans, see
Arizona Supreme Court, 2009).
Research suggests that meaningful involvement of both parents with a child contrib-
utes to the child’s well- being following divorce (Allen, 2014). Having the support of two
parents has a number of potential advantages: The child is able to maintain the social and
emotional bonds with each parent (fostering positive attachment and trust); both parents
share in responsibilities and role modeling for the child; if one parent dies or is incapaci-
tated, the other parent is available to provide continuity of care; and the nonresident spouse
8 For further information on the psychosocial processes of divorce and relationship dissolution, see Emery
(2011) or Fine and Harvey (2005).

Family Mediation and a Therapeutic Approach 345
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may be more likely to comply with child support payments. If parents are able to coparent
in a cohesive manner, then it is also helpful for both parents to live close to one another
(Viry, 2014). Physical proximity permits the child to travel more easily between parents,
while continuing to maintain relationships with peers, neighbors, school, and after- school
activities.
Given the value of having both parents involved in the child’s life, some family law pro-
fessionals and social scientists favor joint legal and physical custody, with both parents shar-
ing decision making responsibility and with the child spending generous, meaningful time
with both parents (Allen, 2014). Mediators need to remain neutral on the issues of joint
custody and time- sharing arrangements, allowing the clients to decide what is best for their
child. As noted earlier, the best interests of the child depends on the particular circum-
stances of the family and child. If there is a high level of interparent conflict, if there is a
pattern of domestic violence (Brinig et al., 2014), if one parent has a significant mental ill-
ness (Deutch & Clyman, 2016), or if the child has difficulty with transitions, then it might
be in the child’s best interests to live primarily with one parent and to have that parent be
responsible for major parenting decisions (Allen, 2014; McIntosh, Pruett, & Kelly, 2014;
Vanassche, Sodermans, Matthijs, & Swicegood, 2013).
Mediators can help parents consider their child’s developmental needs when determin-
ing parenting plans. The period from birth to 3 years old is particularly important in terms
of children developing positive attachment, parent– child bonds that affect children’s abil-
ity to develop relationships throughout their lifetime (L. Parkinson, 2011). To promote
attachment, young children need regular, frequent time with the relevant caregiver(s).
Children also need to feel safe with each parent, free from stress and interparent conflict.
Attachment can be supported by having regular routines for meals, sleep, play, and other
activities (McIntosh et al., 2014). Parents need to allow children to explore and develop
independence, as well as being present to nurture, support, and comfort the children as
needed.
Regardless of how decision making and primary residence are decided, mediators could
have the parents consider the following guidelines in support of the child’s best interests:
• Both parents will speak respectfully of on another in the presence of the child.
• Both parents will support the child’s connections with family, friends, and school.
• Both parents will work through conflicts privately, ensuring the child is not caught in the
middle of the conflict.
Rather than dictate such terms to the parents, mediators may present questions or pos-
sible language, empowering them to develop language and arrangements that meet their
child’s needs.
High- Conflict Divorces and Alienated Children
High- conflict divorces are marked by distrust, anger, resentment, unreasonableness, and
vengefulness (O. Cohen & Levite, 2012; Eddy, 2014c). Whereas most divorcing couples
adapt reasonably well within 2 or 3 years following separation, high- conflict couples con-
tinue to engage in problematic behaviors and interactions well beyond this time frame; in
fact, the conflict may intensify over time. Although high- conflict divorces may comprise
about 8 to 12 percent of cases filed in family court, they consume an inordinate amount of
the court’s time and resources. (Fieldstone & Coates, 2014). High- conflict couples can be
very litigious, spending hundreds of thousands of dollars on legal fees, custody evaluations,
and court- related expenses. Even after the court has made its “final” decision, parents may
continue to wage war and relitigate issues. Parents may fight over seemingly trivial issues,

346 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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such as small amounts of time with the child or slight changes in the other person’s income
(Fieldstone & Coates, 2014). In high- conflict divorces, one or both parents may have a
significant personality disorder, for instance, borderline or narcissistic personality disor-
der (Eddy, 2014c). People with such disorders can be very insecure, sensitive to criticism,
controlling, and manipulative. They tend to have all or nothing thinking. They often have
difficulty managing their emotions. They may make false allegations of spousal assault or
child abuse. They may act in ways that are harmful to the child, just to punish or spite their
former spouse. Given such behaviors and dynamics, it may be very challenging for media-
tors to remain nonjudgmental and unbiased— particularly when one parent’s behavior
and demeanor seems particularly offensive. Although the mediator may feel sorry for one
spouse or sad for the child, the mediator needs to focus on helping the entire family system
without taking sides.
Understanding the nature of high- conflict divorces and personality disorders can pro-
vide mediators insight into strategies that may be helpful for high- conflict clients and their
children. It may be unrealistic to expect high- conflict clients to suddenly become empathic,
forgiving, and collaborative. Although perfect solutions may not be possible, mediators
can help parents reduce conflict and potential harm to the child. When clients are stuck in
defensive thinking and preoccupied with the other’s misdeeds, mediators may need to be
relatively directive while also remaining attentive, empathic, supportive, and nonthreaten-
ing. Rather than allowing clients to berate and brand each other with allegations, mediators
can provide a structure that promotes calm, reasoned discussion about the future. When
one client responds to an allegation in a defensive manner, the mediator might say, “You
don’t need to defend yourself. You’re fine.” If a client keeps rehashing the past, the mediator
could suggest, “Mediation doesn’t help us correct what has happened. Let’s focus on your
proposals for what to do now.” When a client blames the mediator for lack of progress in
mediation, the mediator could respond, “Yes, there could be more progress. What can you
do to help everyone move forward on the issues?” (Eddy, 2014c). If one parent threatens to
move across the country to spite the other, the mediator could empathize, “It sounds like
you’re very angry. How can we try to put all that energy into doing what is best for your
son?” It is crucial for mediators to remain centered, mindful of their reactions to the clients’
emotions and behaviors.
Although coparenting with a high level of cooperation may be ideal for some children
(Molgora et al., 2014), shared parenting plans may be counterproductive in high- conflict
situations (McIntosh et al., 2014). As an alternative, mediators could offer a parallel parent-
ing approach in which each parent has specific expectations and responsibilities, completely
independent of the other parent’s expectations and responsibilities (Arizona Supreme
Court, 2009). For instance, one parent could be responsible for arranging summer camp,
while the other is responsible for taking care of medical and dental appointments. Rather
than one parent picking up the child from the other, parents may pick up the child from
school, day- care, after- school activities, or other neutral locations. Parallel parenting
helps clients disengage, as they do not need to consult with each other, minimizing the
need for communication or joint action. It also minimizes exposure of children to inter-
parent conflict. Parents may agree to communicate only through emails or text messages,
unless there is a true emergency situation requiring face- to- face or voice communication.
Parallel parenting plans are highly structured and detailed (C. Jones, Chappel, & Shaffer,
2014). Compliance with such plans may be monitored by a parenting coordinator, a help-
ing professional whose job is to help parents follow a court order or separation agreement
(Coates, 2015).
Child alienation arises when one parent speaks poorly of the other parent and
acts in manner that discourages the child from spending time with the other parent
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 347
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(von Boch- Galhau, 2013). The alienating parent encourages the child to believe that the
other parent is mean, neglectful, abusive, alcoholic, immoral, dangerous, or otherwise rep-
rehensible, even though these criticisms are not true and are not based on the child’s actual
experience of the other parent. In situations where the child’s fear, anger, or rejection of
a parent is caused by actual experiences of abuse or other negative interactions, the child
is considered “estranged” rather than “alienated” (Olesen & Drodz, 2008). Allegations of
child maltreatment or abuse must be taken seriously; however, some clients may initiate
false allegations to make life more difficult for the other parent. To ensure proper assess-
ment of alienation versus estrangement, therapists and forensic mental health profes-
sionals may need to assess the cause of a child’s anger or rejection of a parent. A useful
tool for assessing alienation is the Alienation Child Custody Questionnaire (Olesen &
Drodz, 2008).
An alienated child may reject all contact with the other parent; alternatively, the child
may continue to spend time with the other parent, but experience high levels of anxiety.
Given the negative impact of alienating behaviors, they could be viewed as a form of emo-
tional abuse requiring child protection interventions (Lowenstein, 2011).
Alienating parents may or may not be aware that they are harming their child’s relation-
ship with the other parent. Alienating parents may convey themselves as innocent victims
who need the unwavering support of the child. The alienating parent is often the resident
parent, who has more time with the child and may want to limit access to the other parent.
Alienating behaviors may include making it difficult for the nonresident parent to spend
time with the child, for instance, scheduling out- of- town travel on significant dates such as
the child’s or nonresident parent’s birthdays. Although some legal and mental health profes-
sionals believe that “parent alienation syndrome” should be recognized as a distinct mental
disorder (von Boch- Galhau, 2013), it has not been recognized by the American Psychiatric
Association (2014) and it remains controversial (Viljoen & van Rensburg, 2014). Whether
or not it is a diagnosable syndrome, mediators should be aware of alienating behaviors and
their negative psychological effects on children (Lowenstein, 2009). Children see them-
selves as the product of both parents; when a parent derides the other parent, the child’s
self- esteem is eroded. Mediators could help parents gain insight into the effects of alienating
behaviors on their child (“How do you think your daughter feels when you call her mother
a depraved whore?”). Although alienating behaviors can turn a child against the other par-
ent, they can also make the child feel poorly about the alienating parent, as well as the child
herself. Some children cope with alienating behaviors by supporting each parent when in
the presence of that parent. Thus, a child might tell her mother that her father is careless and
self- centered, as that is what her mother wants to hear; at the same time, the child might
tell her father that her mother is an emotional wreck because that is what her father wants
to hear.
When one parent makes allegations of child abuse or other forms of maltreatment,
mediators do not need to assess whether these allegations are founded. The mediator’s role
is NOT to assess child protection issues. Rather, if a mediator has a reasonable suspicion of
child abuse or neglect, the mediator is mandated by child protection laws to report those
suspicions to child protection authorities. Unfortunately, reporting a child protection issue
may lead to concerns about the mediator’s neutrality, possibly leading to disengagement
by one or both parents. To avoid this problem, mediators could ask the parent raising child
protection concerns to make the report to child protection authorities. If the initial allega-
tion is not a true child protection concern, the parent may recant the allegation and refuse
to make the report. If the alleging parent does not agree to call protective services and the
mediator believes she has a legal duty to report, the mediator may inform the child protec-
tion agency that one parent raised these allegations, and not make any comments about the
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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348 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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reasonableness of the suspicions. In this manner, the mediator fulfills a legal duty to report,
but avoids losing neutrality since the mediator is not assessing the allegation.
If the parent or mediator does make a report, mediation could be suspended until the
child protection agency has completed its assessment. If the allegations are unfounded, then
mediation can resume without involvement of the child protection system. If allegations
are founded, then the mediator and clients will need to determine whether it is appropriate
to proceed with family mediation. In some situations, the immediate need for child protec-
tion intervention takes precedence over mediating separation and divorce issues between
the parents. Also, in some high- conflict situations, parents are so invested in the fight that
they prefer ligation and adversarial processes to mediation; they perceive no incentive in
resolving their conflicts in an amicable manner (Howieson, 2011).
Community Supports, Resources, and Supplemental Services
Mediators should be aware of supports and resources that may be helpful for clients going
through divorce. To promote client empowerment and self- determination, mediators
should provide information or access to information, rather than giving specific recom-
mendations. Thus, if a client wants legal advice but does not know where to start, the media-
tor could provide the client with information about a lawyer referral service, or perhaps
with a listing of lawyers who specialize in family law and collaborative law. If a client were
interested in therapy, the mediator could provide the names of four therapists and invite the
client to speak with each of them before deciding which to engage. Other local services that
mediators should know include
• evidence- based parenting education, family transition, or coparenting intervention pro-
grams (individual counseling, couple counseling, facilitated groups, self- help groups,
online programs) (Prescott, 2014; Pruett et al., 2013);
• parenting coordinators (e.g., Coates, 2015; http:// www.parentingcoordinationcentral.
com);
• parenting coaches or consultants (Fieldstone & Coates, 2014);
• custody and parenting plan evaluators (Lund, 2015);
• supervised visitation and parent reconnection programs (Fieldstone & Coates, 2014);
• crisis hotlines for domestic violence, homicidal ideation, and suicidal ideation;
• child protection services (for abuse and neglect);
• child counseling and therapy;
• recreational programs;
• child support enforcement programs;
• guardian ad litem or child advocacy programs;
• legal aid (for clients who need assistance with legal fees);
• business and property appraisers;
• family law arbitrators (Ferguson, 2013); and
• tax and financial advisors.
Family mediators may also provide clients with information about books, pamphlets, and
online resources for parents and children (e.g., click on resources for families at http://
www.afccnet.org). These resources may include stories, guidelines, and suggestions, as well
as information about parenting plans. Online and computer- based applications include
digital calendars to facilitate time- sharing, expense calculators and logs, child support cal-
culators, and message boards to facilitate interparent communication. Fee- based programs,
such as Our Family Wizard (https:// www.ourfamilywizard.com), provide a range of online
services to support families through separation and divorce. Mediators can help families

http://www.parentingcoordinationcentral.com

http://www.afccnet.org

https://www.ourfamilywizard.com

Family Mediation and a Therapeutic Approach 349
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determine which, if any, online and electronic services would be helpful for their particular
circumstances. Some clients might find that electronic communication helps them avoid
miscommunication and ensure that the tone of their communication is respectful; others
may find that electronic communication exacerbates their conflict.
In addition to professional resources, mediators should be aware of nonprofessional
supports that may be available. Extended family and friends may be helpful in a variety of
ways: providing parents with alternate childcare and respite, providing moral support and
concern, and helping clients move on with their lives after separation. Treating clients as
experts in their own lives, mediators can explore a broad range of possible resources and
support systems with clients, allowing them to make decisions about whether and how to
access these supports.
Cultural Diversity Issues
Culture, ethnicity, race, religion, sexual orientation, gender identity and expression, disabil-
ity, socioeconomic status, and other aspects of cultural diversity affect the way that families
experience separation and divorce. Accordingly, mediators should be aware and responsive
to diversity issues. This section provides examples of diversity issues to illustrate a range
of situations in which mediators need to be attentive to client diversity. In practice, media-
tors may need the assistance of cultural interpreters, diversity trainings, or culture- specific
readings to help them navigate diversity issues with a particular client system (Barsky
et al., 1996).
According to Catholic tradition, marriage is forever and divorce is not permitted.
A Catholic couple might consider separation without plans for divorce; alternatively, they
might seek annulment of their marriage. A mediator working with such a family could
inquire about their plans regarding divorce. Rather than assuming they would never con-
sider divorce, the mediator could ask about their plans and how they fit with their reli-
gious beliefs and feelings associated with these beliefs. Simply because the clients identify
as Catholic does not necessarily mean that they are not considering divorce. If the clients
would like to have religious guidance, the mediator could invite their priest into the media-
tion process (with both clients’ permission).
While family mediation often involves the mother and father, mediators should be open
to involvement of other family members in light of the diversity of family structures and
dynamics. In some cultures, children are often raised by grandparents or other extended
family members (L. Parkinson, 2011). Even when children are raised primarily by the par-
ents, grandparents or other elders may have a say in major decisions for the children or oth-
erwise share in parental responsibilities. According to some cultural norms, women defer
to their husbands, making it difficult for them to be assertive in family mediation; female
clients may wish to have a brother or other male representative participate in mediation in
order to ensure that the process is fair (Barsky et al., 1996). Rather than assuming what is
best for clients from a particular culture, mediators should explore cultural dynamics and
help the clients determine how mediation should be structured to meet their unique needs.
Gender issues may arise in relation to how men and women are socialized to deal with
conflict. Women may be more amenable to discussing emotions, whereas men are social-
ized to focus on task- related problems to be solved (L. Parkinson, 2011). During media-
tion, men may state their position and find logical reasons to support it. In contrast, women
may respond based on interpersonal obligations and the importance of maintaining good
relationships (Poitras & Raines, 2013). To bridge such differences, mediators could meet
separately with each party. For instance, if one party needs time and space for emotional
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waste of time, the mediator could meet individually to start with each client’s preferred way
of dealing with conflict. The mediator can then help each party explore alternate ways of
dealing with the conflict. For instance, if the father initially avoids talking about emotions,
the mediator could help him understand how expression of emotions may be helpful to CR
process.
In families where women are the primary caregivers and nurturers, they may be expected
to continue to this role after separation. Although families may decide to continue their pre-
separation division of responsibilities, mediators can help them explore whether a different
sharing may be in the child’s best interests.
When working with same- sex couples, mediators should be attuned to the unique chal-
lenges faced by gay and lesbian parents (Barsky, 2016; Moscatti, 2015). For instance, one
parent may be in the closet (very discreet about her sexuality), whereas the other is out.
Alternatively, both clients may lack support of family members who reject them because of
religious beliefs about their sexuality. Same- sex couples may also face legal impediments,
for instance, laws that favor the biological parent’s rights over the other parent’s rights
(Murphy & Rubinson, 2009). Once again, rather than making assumptions that these con-
cerns apply to all same- sex couples, mediators need to assess the dynamics and issues for
each client situation.
Among African American families, the rate of fathers who do not participate in their
children’s upbringing is significantly higher than for many other groups (Gaskin- Butler
et al., 2015). Among couples who have never married (regardless of race or ethnicity), there
are also higher rates of poverty, higher rates of nonresident fathers who are not involved
with their children’s lives, and higher rates of nonresident fathers do not pay child support
(Maldonado, 2014; Pearson, 2015). Whereas mediation is often looked upon as a method
of helping couples separate, mediation could be used as a method of engaging fathers in
their children’s lives (Gaskin- Butler et al., 2015). In situations where the parents never lived
together and the father had little involvement with the children, clients may use mediation
to promote coparenting and ensure that fathers do not drift away from their children’s lives.
If a father does not know how to feed, bathe, or diaper a baby, the parenting plan could
include plans for how the father will learn such skills (e.g., with help from the mother, from
a counseling program, or from grandparents). Mediators could also refer clients to psycho-
educational programs designed to improve coparenting and the involvement of fathers in
their children’s lives (Pearson, 2015).9 Mediators can help clients explore the potential ben-
efits of greater involvement by the father: to share in the emotional and financial support
of the children, to provide the mother with respite in caring for the children, to provide a
positive male role model, or to allow the mother time for employment outside the home.
Ultimately, however, mediators should respect family decisions for the father to have lim-
ited or no involvement with the children. After all, mediators view clients as experts in their
own lives.
In blended families, parents may have different expectations about who is responsible
for the emotional and financial support of stepchildren following separation. For instance,
a mother may want to continue a relationship with her biological children, but not with
her stepchildren. Mediators should avoid imposing opinions on the families, includ-
ing whether they think stepparents are morally responsible for the care of their stepchil-
dren. However, mediators could help parents explore the impacts of their choices on the
9 Although Pearson (2015) and other researchers note the positive potential impact of greater father involve-
ment, the consequences for children may depend on the nature of the father’s involvement (particularly in
situations with family violence).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 35 1
351
children, including their children’s potential interests in maintaining relationships with
their stepsiblings. Mediators may also refer clients to their attorneys for advice on whether
they have legal rights and obligations (e.g., time- sharing, financial support) regarding their
stepchildren.
Socioeconomic issues also play a big role in post- separation planning. For parents who
have the means to support their children through college, there may be an expectation that
they do so. For parents without such means, child support may terminate when the children
reach the age of majority. For residential parents who are receiving welfare, there may be
disincentives from seeking child support from the nonresidential parent. Residential par-
ents could lose welfare payments, Medicaid, or other entitlements; even if they are entitled
to child support, they may have more difficulty collecting such support, particularly if the
nonresidential parent does not have consistent employment or if the residential parent has
concerns about domestic violence (i.e., the support money is not worth the risk of further
violence). If the nonresidential parent is totally absent, the residential parent and children
may have access to other benefits (e.g., scholarships for college education based on financial
need). One or both parents may be embarrassed to discuss such issues, so mediators need
to be sensitive to these issues and create a safe environment for parents to disclose them.
INDIVIDUAL SESSIONS: PREMEDIATION AND CAUCUSING
One of the key differences between TpM and other models is the emphasis TpM places on
meeting individually with clients, in premediation as well as in caucuses during the middle
phases of the mediation process. Nontherapeutic mediators tend to limit or avoid individ-
ual meetings with clients, preferring to meet jointly and have clients work through their
concerns together. Therapeutic mediators use individual meetings to assess the conflict
situation, including individual factors that may be impeding effective management of the
conflict. Individual sessions also provide mediators with an opportunity to provide each
client with individualized help, using therapeutic techniques that may not be appropriate
during joint sessions. One of the primary advantages of meeting individually is that clients
may be more open to discussing certain issues without the other party present. A mediator
may not learn about domestic violence or power issues, for instance, unless the mediator
has an opportunity to meet privately with each client. The following sections explore how
mediators may use individual meetings to assess the family’s situation, to prepare clients for
constructive participation in mediation, to help clients deal with power and violence issues,
and to work with attorneys.
Assessment
During the premediation phase, therapeutic mediators meet individually with each parent10
to gather information, assess the dynamics of their family and relationships, and formulate
plans for proceeding with the next stages of the mediation process (Wall & Spira, 2012).
Family mediators gather information to assess
• the ability of each party to communicate with each other;
• the intensity of the conflict and how the parties seek to resolve differences;
• the nature and extent of any violence between the parties;
• the extent to which the parties trust or distrust one another;
10 Meetings involving children are discussed toward the end of this chapter.

352 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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• the degree to which each party exhibits flexibility;
• the patterns of interaction between the parties and relevant systems (including social
supports, sources of stress, and intergenerational patterns of dealing with conflict);
• the level of dependence or attachment between the parties in their relationship;
• whether the parties want to continue or terminate their former relationship (wishes and
motivations);
• the extent to which the parties can focus on the future;
• the overall cognitive functioning of the parties (including how this may be affected by
memory impairments, substance abuse, mental illness, or personality disorders);
• the ability of each party to perform social functions relevant to the dispute (e.g., parent-
ing, work);
• the financial, social, and emotional resources of each party;
• cultural diversity issues that are relevant to the issues in conflict (including beliefs, values,
norms, and myths);
• critical incidents that led the parties to their current situation;
• what motivated their request for mediation;
• whether and how they are using assistance from attorneys; and
• potential conflicts with third parties that may impinge on the mediation process
(Holtzworth- Munroe, Beck, & Applegate, 2010; Irving & Benjamin, 2002/ 2012; Poitras
& Raines, 2013).
To illustrate the assessment process in practice, consider the following scenario:
Patricia and Petr are the parents of 6- year- old Ceanna. Patricia has filed for divorce
even though they are still living in the same house. Petr has moved into the basement.
Upon the advice of his attorney, he refuses to leave the house. Ceanna has become very
moody. She was suspended from school after initiating a fight with another child. The
court referred Petr and Patricia to Munroe for mediation to deal with parenting issues
and possession of the marital home.
Munroe decides to meet individually with each parent, giving him an opportunity to
explain mediation and assess whether mediation is appropriate for Petr and Patricia.
Having individual sessions provides the parents with an opportunity to vent their feelings
and tell their stories without escalating conflict with the other party.11 By allowing parents
to recognize, express, validate, and experience their feelings, mediators can help them gain
control (Emery, 2011). The premediation meetings also give Munroe an opportunity to
offer individualized support. Munroe gives each parent considerable leeway to talk about
the history of their relationship before focusing them on the present context of the conflict.
He uses active listening skills to confirm that he is hearing their perspectives. He is careful
to avoid responses indicating that he agrees or sides with either one.
Munroe discovers that both parents are articulate, assertive, and care deeply about
Ceanna. Munroe can build upon these strengths during mediation. Petr and Patricia are
also distrustful and frustrated with each other, giving rise to a moderately high level of
conflict. Patricia says she asked Petr to leave when she discovered he was having an affair.
11 The downside of allowing the parties to vent in individual sessions is that they do not hear one another’s
stories. The mediator may learn information about one party that the mediator believes should be shared
with the other. Accordingly, the mediator needs to let both parties know from the outset that the mediator
will encourage them to share information with one another.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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Family Mediation and a Therapeutic Approach 353
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She also says Petr has a problem with alcohol and that he should not be left alone with
Ceanna. Petr denies having an affair and says Patricia is fabricating the story about alcohol-
ism because she is enraged about the “supposed affair.” Upon gathering this information,
Munroe formulates the following tentative assessments:
• Both parents are competent to mediate. Although Patricia claims Petr has an alcohol
problem, there were no signs of alcohol use when Munroe met with him. He was lucid
and had no problems with memory or communication. Munroe did not assess whether
he had an alcohol problem, as this is not a mediator’s function.
• Follow- up premediation sessions with each parent will be helpful. Although Patricia
wants to divorce, Petr says he thinks the marriage can be saved. Follow- up sessions can
help determine whether reconciliation is possible, and if not, then the mediator can help
Petr deal with his ambivalence about ending the relationship and accept the reality of the
separation. Patricia’s comments and behaviors reflect anger and hurt regarding her belief
that Petr was having an affair. The follow- up session with her can be used to help her work
through these issues.
• Munroe uses the Conflict Tactics Scale (Straus, Hamby, Boney- McCoy, & Sugarman,
1996) to assess for violence. Both clients disclose yelling. They report no history of
physical violence, emotional manipulation, or financial control. Munroe decides that it
is appropriate to mediate in joint sessions with Petr and Patricia. Given the high level
of conflict and the tension of living separately within the same house, he notes that it is
important to continue monitoring for safety issues.
• Initially, Patricia’s comment that Petr should not be alone with Ceanna raises the pos-
sibility of a child protection issue. When Munroe uses clarification questions to deter-
mine what Patricia meant, she does not indicate significant concerns regarding abuse or
neglect. Patricia may have needed to vent her anger, as the allegations dissipated when
her fury subsided.
• Munroe determines that although the parents care about Ceanna, they are not fully aware
of how their conflict might be affecting her. Premediation may be useful in helping both
parents explore how their conflict may be affecting Ceanna’s behavior at home and at
school.
Throughout the assessment, Munroe focuses on each parent’s ability to mediate and how
he may be able to help them mediate more effectively. He does not take sides. He does not
evaluate what is in Ceanna’s best interests, including where Ceanna should live, how parent-
ing time should be divided, or what types of arrangements Petr and Patricia should have
around key parenting decisions.
Munroe is aware of a potential power imbalance given that Petr still believes there is a
possibility of reconciliation. Petr says he wants to pacify Patricia, hoping he can mend their
relationship by acceding to her wishes in mediation. Patricia is adamant that the separation
is permanent; she is very assertive of her rights and shows no inclination to accommodate
any of Petr’s concerns. Petr also comes from a culture that deals with conflict in a less direct
manner than Patricia’s. Premediation gives Munroe an opportunity to rebalance power
between the parties, so they can negotiate fairly and fully. For example, Munroe can offer to
teach Petr assertiveness skills that are consistent with his cultural values. He can also coach
Patricia on how to assert her needs without becoming aggressive. By assessing the clients’
dynamics, personalities, and motivations, the mediator is able to formulate an assessment
and plan about how best to proceed with the mediation process (Turkat, 2012).
This section has highlighted a number of potential challenges to the mediation pro-
cess, for instance, strong emotions, ambivalence about separating, distrust between clients,
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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354 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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and strongly entrenched positions (Poitras & Raines, 2013). Mediators should also assess
potential strengths. By helping clients identify a positive period in their relationship, media-
tors can reinforce these strengths and foster hope. “It sounds like both of you struggled
financially during the first few years of marriage; but you worked together and you pro-
vided a good home for Ceanna. This shows you have the potential to work together, even in
tough times, for the good of your daughter.” Alternatively, Munroe might commend clients
for traits demonstrated in mediation. “Patricia, you’ve shown a lot of perseverance. Your
willingness work through difficult issues bodes well for mediation.” Given concerns about
neutrality, it is often easier to commend parties individually rather than in joint meetings.
Other potential strengths to reinforce include the presence of support systems, common
values, optimism, humor, creativity, honesty, openness, perseverance, respectful communi-
cation, and other factors that can help them bridge differences and enhance their relation-
ship moving forward (Billikopf, 2014; Moore, 2014).
Preparing Clients for Mediation
For each challenge identified in the forgoing assessment, mediators can develop plans to
prepare clients individually, helping them mediate more effectively when brought together.
The following paragraphs illustrate strategies that mediators can use to help clients work
through difficult emotions, to learn how to focus on the child rather than themselves, to
extricate themselves from entrenched positions, and to enhance their mediation skills.
In terms of emotions, it is often the noninitiator of the separation who feels more sad,
hurt, depressed, or hostile (Howieson, 2011). When Patricia initiated the separation, Petr’s
first reaction was denial. “This isn’t really happening. We’ll work it out.” He is not ready to
let go of his love for Patricia, or even entertain the thought that their marriage may be over.
Munroe can help Petr process his feelings by demonstrating empathy. “Sounds like you
were shocked that Patricia accused you of infidelity and asked you to move out.” By meeting
individually, Munroe is able to show concern for Petr’s situation without triggering a defen-
sive reaction from Patricia. Munroe maintains equidistance by providing similar empathy
for Patricia’s situation when he meets with her. Mediators should be conscious of the use of
time. As Munroe helps Petr work through his denial, he may go through other challenging
reactions, such as anger, sadness, and grief (Emery, 2011). When people have experienced
traumatic or turbulent events, they may benefit from time and space to allow for emotional
healing (Mayer 2009). Although some issues need to be determined relatively quickly, time
between sessions may allow for the parties to deal with despair and other emotions trig-
gered by divorce (L. Parkinson, 2011). Mediators can also help parties reframe their emo-
tions. When Patricia discusses how irate she was when she discovered Petr was having an
affair, Munroe helps her see that, underneath the anger, she is feeling hurt. In a joint session,
Patricia may not disclose how hurt she felt, not wanting to look weak to Petr. Discussing
such emotions during caucus helps Patricia save face.
When parents feel angry or hurt, they often focus on their own wishes and interests.
“Petr ruined our marriage and embarrassed me to all our friends. He should be punished.”
Given the need to focus on the child’s best interests, individual sessions can be used to
reorient parents from their own interests to the child’s. To facilitate insight, Munroe might
ask, “How do you think your anger might get in the way of doing what is right for your
daughter?” Although the mediator shows empathy and concern for Petr’s situation, he also
raises Petr’s awareness of self- defeating behaviors. “Would you mind if I shared some of my
observations about your interactions with Patricia? (pause for response) There are times
when you stare at Patricia and she starts to raise her voice. I’m wondering if your intense
eye contact is making her feel defensive.” By raising awareness of how anger affects his

Family Mediation and a Therapeutic Approach 355
355
nonverbal behavior, Petr can modify his eye contact and foster more positive interactions.12
Note how the mediator shares an observation with the client. The mediator does not force
opinions on the client, but asks for permission to share a hunch with him.
Alternatively, Munroe might focus Patricia on Ceanna’s long- term well- being: “Ten
years from now, what would you like Ceanna to say about how you handled the separation
process and its impact on her?” Munroe could also discuss how the purpose of mediation
is not to ascribe blame or impose punishment, but to help them rebuild a better life mov-
ing forward— for the parents and the child: “I understand you feel hurt. You feel like Petr
has violated your trust. What is more important than your hurt, however, may be what you
do with that hurt.” Mediators can give clients permission to let go of feelings that may be
impeding their ability to focus on their child’s best interests, helping them express their pain
and encouraging them to take responsibility for how they want to manage the energy from
their emotions.
When clients are entrenched in certain positions, there appears to be no room for cre-
ative win- win conflict resolution, or even for compromise. Both clients insist they are right
and do not want to back down (Poitras & Raines, 2013). Mediators can teach clients the
value of interest- based, collaborative negotiations, including how they benefit the parents
and the child. During individual meetings, mediators can also use reality testing with each
client. “Petr, you said that you plan to remain in the marital home permanently. What do
you think would happen if Patricia takes this issue to court for a judge to decide?” Munroe
could refer Petr to speak with his attorney about possible and probable outcomes of going
to court, including the costs that each party will bear. Munroe could explain the nature of
cognitive bias:
Would you like to learn about cognitive bias? It might help you let go of some of your frustra-
tions. [Pause for response] One of the reasons that people become locked in conflict is because
of cognitive bias. Cognitive bias is the natural tendency for people to look at facts and evidence
that support their own point of view. People tend to dismiss facts that might support the other
person’s perspective. I catch myself doing this, so I have to remind myself to consider the situa-
tion from multiple perspectives.
Explaining cognitive bias could open up a rational discussion of both pros and cons of
living in the same house.
Another way to facilitate insight into the other parent’s perspective is to apply the
Golden Rule, “Do unto others as you would have them do unto you.” If Patricia insists that
Petr is not allowed to be with any girlfriends in the presence of Ceanna, the mediator could
help her consider what Petr might demand in response. “So if you want to limit who Petr
can be with when he spends time with Ceanna, would you also be prepared to let Petr limit
who you can be with?” If this technique works, Patricia gains empathy for Petr’s potential
reaction, allowing her to rethink what she wants to ask him in the next joint session. This
type of question entails some risk, as it could put Patricia on the defensive. Using it in the
confines of an individual meeting, however, allows Patricia to process the issues without
having to face Petr.
Mediators can facilitate insight into how conflict may have taken over their lives (Poitras &
Raines, 2013). Patricia accuses Petr of being neglectful. Petr responds by saying that
12 One of my clients was completely unaware that she was making faces and mimicking her former husband
during joint sessions. During an individual session, we agreed that I would raise my writing pad to my chest
to let her know that she was making faces, giving her an opportunity to correct her behavior.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Patricia is unreasonable. Each time one parent labels or lashes out at the other, the negative
cycle of conflict continues. During individual meetings, mediators can ask parents to take
a step back to consider their current cycle of conflict. “Patricia, what are some of the effects
of the current conflicts between you and Petr? How have they affected you in relation to
your sleep, your work, and your ability to care for Ceanna?” After highlighting the negative
effects of conflict, mediators can help parents strategize how to start working toward a more
positive relationship. “Petr, what are some things that Ceanna loves about her mother? How
do you think Patricia would respond if you told her that you also appreciate these qualities?”
This strategy reminds Petr that Patricia has many positive attributes. Rather than focusing
on ill feelings toward Patricia, identifying positives gives Petr permission to have positive
feelings about her. It also helps him find words to affirm Patricia and build bridges with her.
Individual meetings can be used to coach clients on how to use particular negotiation
skills (Billikopf, 2014). If Petr were unsure how to respond to Patricia’s anger, for instance,
Munroe could teach him how to acknowledge the anger without agreeing or disagreeing
with Patricia’s stated cause for the anger. In other words, he can acknowledge Patricia’s
anger at him without confessing infidelity. He could also simply listen without respond-
ing verbally, just remaining present. Munroe and Petr could role- play possible responses,
so Petr can develop self- awareness and verbal skills to respond more effectively. If Patricia
has trouble with brainstorming, Munroe could practice brainstorming with her, including
options that meet Petr’s interests. Mediators can also teach clients the value of concilia-
tory gestures. When parents reach impasse over how to proceed, a positive gesture by one
parent can lead to reciprocal responses from the other. During negotiations over timeshar-
ing, Patricia suggests, “Why don’t you spend Thanksgiving with Ceanna. I know it’s a very
important holiday for you and your parents.” Although Patricia is not assured that Petr will
respond in kind, this gesture could mark a key turning point in negotiations. Taking such
risks can lead to further collaboration and enhanced trust. Mediators may find it easier to
encourage the more reasonable client to make compromises. Mediators should be cautious
about asking more of one client than the other, ensuring the mediation process is fair to
both clients.
Power and Safety Issues
Given the potential vulnerability of clients, mediators should use a standard screening pro-
tocol to assess for power and safety concerns from the outset of mediation; they should
continue screening throughout mediation (e.g., C. Beck, O’Hara, Anderson, & Benjamin,
2013; Cleak et al., 2014; Holtzworth- Munroe et al., 2010). Initial screening may include
an in- person interview, as well as a written or online questionnaire. Some clients may feel
safer disclosing sensitive information via one medium or the other (Bingham, Beldin, &
Dendinger, 2014). During the first meeting, mediators should establish rapport, using
empathy, honesty, and compassion to help the client feel comfortable. Mediators need to
know how to ask questions about violence and control in a nonthreatening, concerned
manner (Bingham et al., 2014).
If mediation is inappropriate because of concerns of severe power imbalances or vio-
lence, it is preferable to identify these concerns as early as possible— both to safeguard cli-
ents from harm and to avoid wasting their time. One of the challenges in assessing power
and violence issues is that clients may be reluctant to share information about these con-
cerns (Rivera, Zeoli, & Sullivan, 2012). A person who is experiencing violence or duress,
for instance, may feel too embarrassed to discuss it. Alternatively, that person may be afraid
that the perpetrator of the violence may retaliate if the violence is exposed, posing pos-
sible threats to the survivor and to the children (Bingham et al., 2014). Survivors of abuse

Family Mediation and a Therapeutic Approach 357
357
report a range of feelings that make it difficult to disclose abuse: paranoia, shame, confu-
sion, denial, and anger. They may also wonder what will happen if they disclose abuse: Will
the mediator be able to help them, will the mediator retraumatize them by delving into
the abuse, or will they be forced to go to court rather than avail themselves of mediation
(Bingham et al., 2014)?
Mediators are more likely surface violence issues if they have intimate partner abuse
training, including a structured protocol for screening and skills for asking questions in
a nonthreatening manner (Holtzworth- Munroe et al., 2010). Although some mediators
begin mediation with a joint meeting, beginning with separate meetings may be preferable
because clients experiencing violence are more likely to disclose violence if the other per-
son is not present (Olson, 2013). Mediators need to know what resources are available and
how to refer clients if they do surface significant abuse concerns (Bingham et al., 2014). In
some situations, there may be urgent safety concerns requiring immediate precautions and
safety plans. In other situations, the client may have already taken appropriate precautions
and the risks of further violence may have been ameliorated (e.g., no abuse has occurred
since separation and the client no longer feels intimidated).
A complicating factor in assessing safety and power issues is that there are many differ-
ent forms of violence. In some instances, mediation is clearly inappropriate because media-
tors cannot ensure safety and fairness. In other situations, mediation could be offered using
a modified process and safeguards (Olson, 2013). Possible modifications include having
mediation sessions with each parent in separate locations, escorting clients to and from
their cars, having parties attend mediation with an attorney or other support person, and
establishing firm ground rules at the outset, including which issues are nonnegotiable.
When there is a history of intimate partner abuse, for instance, joint custody may be unac-
ceptable to the extent that it increases risks of further violence and control (Brinig et al.,
2014). Thus, mediation could focus on how the nonresident parent will be able to spend
time with the child; issues such as the child’s primary residence and parental decision mak-
ing will be off the negotiation table. Another possible precondition to mediation is that the
person causing the abuse agrees to participate in a treatment program to help him address
these issues. Other issues to be excluded from mediation include determining whether the
abuse occurred, trying to reconcile the couple, assessing fault, or determining punishment
for past abuse (Milne, as cited in Murphy & Rubinson, 2009). If these issues need to be
determined, then they need to be determined in forums other than mediation.
One of the more commonly used typologies of intimate partner abuse comprises five
categories:
• Coercive, controlling violence (CCV) arises when someone uses escalating levels of physi-
cal and psychological force aimed at victim intimidation and control.
• Violent resistance arises when someone uses violence to self- protect against a partner
using coercive violence.
• Situational couple violence arises when an unresolved disagreement spirals into a violent
incident, but the violence is not part of a larger pattern of control.
• Separation- instigated violence first arises at the time of separation by someone with no his-
tory of coercive violence.
• Mental health- driven violence arises when violence stems from schizophrenia or other
severe mental health issues. (Allen, 2014)
Although mediators should attend to risks associated with any form of violence, CCV is
the category most likely to preclude mediation. CCV is sometimes called intimate terror-
ism, reflecting the fear, coercion, and control inherent in CCV (Olesen & Drodz, 2008).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Given the pattern, intensity, and impact of CCV, it would be difficult if not impossible for
a mediator to ensure safety and fairness, even with modifications to the mediation process.
For instance, if the mediator uses shuttle mediation, with the clients never meeting, the per-
petrator of abuse can continue to instill fear and control (Olson, 2013). The client who has
experienced abuse may acquiesce to the perpetrator’s wishes to avoid the risk of retaliation
(C. Beck et al., 2013). Further, the mediator might unwittingly expose the abuse survivor
to further violence by encouraging her to be more assertive.
When a mediator assesses a history of violent resistance, situational couple violence,
or separation- instigated resistance, mediation may be possible, depending on whether the
parties can provide truly informed and voluntary consent. In these cases, the history of
violence has been situational and there may be no pervasive dynamic of coercion and con-
trol. When assessing violence, it is important to focus on the impact and meaning to the
survivor (Olesen & Drodz, 2008). In some situations, a single incident of violence could
be so terrifying to the survivor that she continues to live under the perpetrator’s coercion
and control. In other situations, there could be several incidents of violence, but the sur-
vivor has taken steps to ensure her physical and psychological safety, exculpating herself
from fear. The mediator could explore the possibility of mediation with the parties, with
particular emphasis on managing concerns about safety, fairness, and freedom from coer-
cion. If the perpetrator takes responsibility for his behavior and the victim is able to negoti-
ate without fear of retribution or control, then mediation may be possible (Ver Steegh, as
cited in Murphy & Rubinson, 2009). Some people who have experienced situational abuse
may prefer mediation because alternatives, such as court, do not provide better safeguards
(Olson, 2013). In cases where there is mental health- driven violence, it may be necessary
to ensure that the mental health condition is under control before initiating mediation (e.g.,
the person is receiving medication and other mental health treatment and monitoring; or if
there is an addiction issue, the person has been able to achieve a significant period of sobri-
ety). There is rigorous debate among researchers and helping professionals concerning the
appropriateness of mediation— even with modifications— if there is any history of vio-
lence (Semple, 2012). Some contend that mediators are incapable of redressing violence in
a manner that ensures that mediation will be safe and fair (Rivera et al., 2012). Others con-
tend that mediation’s de- emphasis on discussing fault discourages victims from asserting
their rights and encourages victims to see themselves as part of the problem (Grillo, as cited
in Murphy & Rubinson, 2009). I believe that the appropriateness of mediation depends on
the nature and extent of violence, the motivations and wishes of the clients, and the skills
and knowledge of the mediator to handle such situations.
When assessing for violence, it is helpful to ask about the full spectrum of potential
violence. Some people equate violence with physical and sexual violence, perhaps mini-
mizing the significance of verbal and psychological abuse: yelling, using insulting language,
imposing financial control, making threats to children or pets, destroying property, isolat-
ing, devaluing, belittling, and other controlling behaviors. Intimidation and abuse may also
occur through social media and other electronic technology. Cyberbullying refers to the use
of online technologies to harass, taunt, or humiliate. Cyberbullying may include co- opting
the other person’s online identities and posting embarrassing or intimidating informa-
tion or images. Cyberbullying can be particularly troubling because perpetrators can use
it anonymously. They can also reach large audiences, including friends, family, employers,
and the public. Cyberstalking includes the use of spyware, video surveillance, or other elec-
tronic means to monitor and stalk the other person. Using an assessment tool designed to
identify violence and control issues can help mediators assess a broad range of problematic
behaviors, as well as the frequency and intensity of the violence (Holtzworth- Munroe et al.,
2010; Straus et al., 1996).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 359
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A nonthreatening way to assess for power and control issues is to ask each client how
decisions have been made in the past. “During marriage, how were decisions about family
finances made?” or “How did you decide where your daughter would go to school?” The
mediator can further explore areas of possible concern. For instance, if one client intention-
ally kept the other short of money, the mediator could ask additional questions to assess
for financial control. Tools for assessing intimate partner violence include the Domestic
Violence Evaluation (Drodz, 2007) and the Conflict Tactics Scale (Straus et al., 1996).
Mediators should note that abuse is not necessarily initiated by a man against a woman.
Abuse can occur by a woman against a man, it can be reciprocal, or it can arise between
couples of the same gender. Abuse also cuts across all socioeconomic, cultural, and reli-
gious groups (Olson, 2013).
Power imbalances may arise in situations without violence or abuse. For instance, one
client may be much more assertive than the other. Premediation can be used to help the
more assertive client avoid using power in an exploitive manner, or to teach assertiveness
skills to less assertive client. Similarly, if one client has more power because of greater infor-
mation, that client could be asked to share information with the other client. Although
one client may have the capacity to use power to persuade the other, mediators may ask
questions to facilitate insight into downsides of using undue pressure (e.g., although the
other client may acquiesce during mediation, the agreement might unravel when the parties
leave mediation; an agreement made under pressure may not be in the child’s best inter-
ests; and refraining from using power can foster better relationships as coparents). To the
extent that the parties embrace collaborative, win- win negotiation, the negative potential
of power imbalances can be minimized. In other words, the impact of power is lessened
when mediators focus clients on open communication, gaining insights, and joint problem
solving (Bollen, Verbeke, & Euwema, 2013). Additional means of power balancing include
• ensuring both clients have equal opportunity to speak;
• asking questions (during caucus) to facilitate insight into sources of power that a client
may not have considered;
• helping parties formulate “yesable” options (e.g., if a less powerful parent offers a win- win
option, the other parent may agree to it rather than pushing for a win- lose option);
• helping parties address negotiation weaknesses (e.g., if one party is very disorganized, a
mediator could offer a referral to a counselor who can assist with this issue or a party who
misunderstands legal issues could be referred to an attorney); and
• helping parties reassess their sources of power. The influence of power depends on per-
ceptions. If one client is underestimating her power or overestimating the other’s power,
then that gives greater influence to the other person (Moore, 2014).
Working with Attorneys
Meeting separately with attorneys at the outset of mediation serves a number of purposes.
First, attorneys may be able to help mediators identify violence or other issues that the medi-
ator needs to consider from the outset. If mediation is clearly inappropriate, the mediator
does not need to meet with the parties, thus reducing risks of harm. If mediation might be
appropriate, mediators can take appropriate precautions, for instance, first meeting with the
client who may have been experiencing abuse. Other purposes for meeting with attorneys
include explaining mediation and discussing the most constructive roles that the attorney
can play in the mediation process. Some attorneys are very knowledgeable and support-
ive of mediation; others are not. In either case, mediators can assess their knowledge and

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motivation regarding mediation, answering any questions or concerns. Some attorneys are
concerned their clients will inadvertently forfeit their rights during mediation, compromis-
ing on key issues. Mediators can review appropriate roles for attorneys, for instance, advis-
ing their clients during or in between mediation sessions. Mediators can also discuss the
value of clients speaking for themselves, rather than having mediators speaking for them.
Mediators may validate other important roles for attorneys,
• explaining the value of mediation to clients, instilling confidence in the mediation
process;
• helping clients prepare for mediation (e.g., preparing financial or other information to
facilitate negotiations);
• helping clients identify options for solution, including ways to resolve impasses;
• providing clients with advice about what might happen if the case goes to court, and
helping them reconsider unrealistic positions (Howieson, 2011); and
• helping clients focus on the best interests of the children, rather than focusing on the past
or trying to hurt the other party.
Mediators can validate attorneys’ roles as strong advocates for their clients, while also not-
ing the importance of collaboration in separation and divorce cases. Research suggests that
clients are often more satisfied when attorneys focus on relationships rather than merely
advocating for rights in an adversarial manner (Howieson, 2011). Although having a strong
advocate may feel supportive, clients recognize that collaborative processes can result in
greater fairness than adversarial ones. Mediation offers attorneys an opportunity to balance
their advocacy role with a collaborative negotiation style designed to meet the best interests
of the child, as well as the interests of both parents. Collaborative lawyering also provides
clients with a greater say and sense of empowerment than the traditional adversarial model.
In situations where one or both clients have not hired attorneys represent them,
mediators should explore their reasons. If clients do not see the value in hiring an attor-
ney, the mediator could provide information about potential benefits (e.g., making sure
clients understand their rights, guiding them through complex legal processes, advising
clients how a judge would likely decide a case). If clients cannot afford legal fees, media-
tors could provide information about less expensive services. For instance, some attorneys
offer “unbundled services,” meaning that they will help with specific tasks such as drafting a
separation agreement, but will allow clients to perform other tasks on their own (Greacen,
2014). Some jurisdictions offer free or subsidized legal information and services based on
financial need (e.g., clinics staffed by law students). The ultimate decision about whether
to hire an attorney should be left to the client, although the mediator should note in the
agreement to mediate when a client chooses not to hire an attorney. Further, if one client
has an attorney and the other client is self- represented (“pro se”), the mediator should con-
sider how to manage possible power imbalances within the mediation process (e.g., asking
an attorney to use plain language so the pro se client can understand what the attorney is
saying).
THERAPEUTIC STRATEGIES AND SKILL S
Therapeutic mediators draw from a range of practice theories to inform their work, often
using their training and experience as therapists to edify their practice as mediators. Practice
theories can help mediators conceptualize psychosocial processes that may assist clients
in dealing with emotional, cognitive, and behavioral issues that may be impeding effec-
tive conflict resolution (including the ability to adapt to change). Although therapeutic

Family Mediation and a Therapeutic Approach 361
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mediators are not providing therapy, per se, they may use strategies and skills from various
therapeutic processes within their mediation processes. The following sections illustrate
how elements of family systems therapy, rational emotive behavior therapy, narrative ther-
apy, and solution- focused therapy can be used within mediation. You may also incorporate
strategies and skills from other therapeutic processes into your model of mediation. As you
work through this section, consider how to draw the line between mediation and therapy.
Note that mediation is designed to help people manage or resolve conflict. Accordingly,
when a therapeutic mediator incorporates strategies or skills from therapeutic processes,
they should be used with a view to helping the clients deal more effectively with the conflict.
Family Systems Strategies and Skills
Conceptualizing the family as a system recognizes that a family is not just the sum of indi-
vidual family members. It is a unique entity with its own strengths, challenges, values,
norms, and patterns of behavior (Eddy, 2014a). Family systems serve as a source of sup-
port for the people within the family, offering family members love, nurturing, guidance,
structure, and a sense of tradition. Within each family there are a myriad of roles, such as
father, mother, son, daughter, and grandparent. Different families define roles and respon-
sibilities within families in different manners (Nichols, 2013). According to traditional
gender- based norms, fathers may assume the role of financial breadwinner and mothers
may assume the role as caretaker for minor children. However, such roles may be shared,
reversed, or assumed by other family members (e.g., grandparents or parentified children).
Family systems are composed of subsystems such as the couple subsystem, the mother-
child subsystem, and the sibling subsystem. Systems and subsystems are structured by
boundaries, invisible lines of demarcation that both separate people and define how they
are connected (Minuchin, 1992). Thus, during marriage, the boundary around a couple
subsystem represents the love, support, closeness, and tension between them, as well as the
degree of interactions with other family subsystems and systems outside the family unit. In
general, the most functional family boundaries are ones that are clear and flexible (Wall &
Spira, 2012). When families have unclear, rigid, or enmeshed boundaries, it is more diffi-
cult for them to manage conflict and stress. When a couple separates, all family subsystems
are disrupted. The roles, rules, boundaries, and relationships also change (Eddy, 2014a).
A family system that was once in balance (homeostasis) may be thrown into turmoil as the
family learns to adapt, cope with stress, and find a new equilibrium.
Therapeutic mediators help families renegotiate their roles, rules, boundaries, and rela-
tionships (Emery, 2011), easing the transition and helping family members let go of family
dynamics that are no longer helpful for the separated family system. Therapeutic media-
tors also recognize that the nuclear family system operates within a broader social system,
including extended family, friends, pets, employers, schools, and other systems. Thus, if
grandparents or new partners are fueling the flames of the conflict, the mediator may need
to bring them into the mediation process (L. Parkinson, 2011). Mediators may also help
families access support to help them through transitions, for instance, a teacher who can
aid a child or friends who can help clients implement their parenting plan. Simply hav-
ing a dog present during mediation can foster more positive interactions between clients
(Leaser, 2005).
The following discussion illustrates seven family systems strategies and skills that
mediators may use to assist separating families: structural questions, strategic questions,
circular questions, role- reversal questions, presuppositional questions, predicting the next
step, and exception- oriented questions. Note that questions can include direct as well as
implied questions. An implied question is made in the form of a statement that encourages

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the client to respond as if it were a question. “I wonder whether you have thought about the
costs of litigation,” for instance, encourages clients to respond about the costs of going to
court, even though the mediator did not directly ask them to respond.
Consider a same- gender couple, Nadine and Ellyn, who have been referred to Mindy to
mediate a custody dispute over their 3- year- old son, Sparta.
During marriage, Nadine stayed home to care for Sparta. Ellyn worked long hours,
including frequent travel in her job as a publicist. Because Nadine was Sparta’s primary
caregiver during marriage, she resents having to share Sparta with Ellyn. She also resents
the notion that she has to return to work outside the home. When Sparta was born, both
parents agreed that it was in his best interests for one parent to stay home to raise him.
Nadine does not think she should have to maintain financial responsibility for Ellyn and
wants to be more involved in Sparta’s life.
Mindy recognizes that, despite the separation, Nadine wants to maintain roles that existed
during marriage. In contrast, Ellyn wants to make significant changes. Using a systems
perspective, Mindy can help them explore alternate ways in which they can share roles
and responsibilities. Structural questions are designed to challenge existing family norms,
boundaries, and rules— in other words, the structure of their relationship (Minuchin,
1992). By exploring the functions of norms, for instance, mediators can facilitate insights
and help families consider new norms or preferred ways of functioning. “Nadine, please
help me understand why it was important for you to stay at home with Sparta when he was
an infant? [pause for response] What are some of the changes in the family since you first
made that decision? [pause] In what ways could the old rules use some updating to reflect
your family’s new reality after the separation?” Alternatively, mediators help can use struc-
tural questions to help clients delineate new boundaries and establish a new equilibrium
in the family. Assume Ellyn does not want Nadine to bring new partners into the family
home, purportedly to protect Sparta from being exposed to undesirable characters. “Ellyn,
when you lived with Nadine, the two of you agreed to a monogamous relationship. As a
married couple, each of you had a say in how each other conducted themselves. Now that
you are separated, what type of say, if any, should Nadine have over who you can date or
see?” Mediators can help clients establish new boundaries and expectations by having them
explore prior boundaries, including how they may not be desirable given the dissolution
of the marriage. Note how clients could feel defensive in responding to strategic questions.
Mediators should ask strategic questions in a gentle tone and manner, showing curiosity
and concern rather than blame or condemnation. Although structural questions may influ-
ence client expectations and beliefs (Tomm, 1988), mediators need to respect client self-
determination and allow them to draw their own conclusions.
Strategic questions are designed to help families correct problems in their interactions
(Tomm, 1988). If a client is communicating in an ineffective manner, for instance, the
mediator can draw the person’s attention to this concern. “Nadine, are you aware that
you have been interrupting Ellyn? W hen this happens outside mediation, what happens
next?” Using a question rather than making a statement invites the client to think about
an issue, rather than telling her what to do. Mediators can also use questions to help cli-
ents reflect on problematic family patterns. “Have you noticed that each of you is saying
what the other person should do rather than talking about what each of you could do to
make things better for Sparta?” In this example, the mediator is able to identify issues in
the relationship, rather than problems in one person’s behavior. It is easier for the media-
tor to maintain neutrality by mutualizing the issue and focusing on the relationship. In
situations when the mediator focuses on one person’s behavior, the mediator needs to be
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 363
363
extra cautious about the tone of the question to avoid putting one client on the defensive.
As with structural questions, strategic questions should be asked in a respectful, curious
manner. The mediator may pose questions as a naïve observer, treating clients as experts
in their own lives (Fong, 2015).
Circular questions are questions that invite clients to explore differences, relationships,
interdependence, changes, or patterns (Fong, 2015). W hereas lineal questions imply a
simple cause and effect relationship, circular questions embrace the interactive effects,
reciprocity, and complex patterns within family systems (Nichols, 2013). In divorce sit-
uations, it is often useful to use circular questions to help clients reflect on how things
have changed over time. “Before you married, you entered a prenuptial agreement stating
that both of you would be responsible for your own finances in the event of separation.
How have things changed since you entered that agreement?” Circular questions may also
be used to help clients ponder the views of other family members, whether those family
members are present (L. Parkinson, 2011). Mindy might ask, “If Sparta were here today,
what do you think he would say about how he wants to share time with each of his moms?”
or “Nadine, how do you think Ellyn feels about your wanting her to get a full- time job
outside the home?” Circular questions may also be used to encourage clients to reflect on
each other’s motivations. “Nadine, I’ve noticed that Ellyn keeps saying that Sparta needs
a stable home. W hy do you think she is saying that?” After Nadine responds, the media-
tor can check back with Ellyn to have her clarify her motivations. On the actual issue of
stability, a child does need stability, but this is not a child’s only need. A child also needs
to be able to adapt to change. And a child can benefit from the meaningful, ongoing sup-
port of both parents. The mediator does not need to provide this information in the form
of statements, but rather, facilitate insight by asking questions and allowing the clients to
fill in the details.
In conflict situations, clients often discuss what has not worked. Mediators may use cir-
cular questions to help clients talk about what might work. “You’ve said that it hasn’t been
helpful to debate whether Ellyn should go back to work. The discussion is going around in
circles. Let’s get out of this perpetual revolving door. What do you think might work?” Here,
the mediator empowers the clients to think and act differently. Alternatively, the mediator
could use circular questions to encourage openness and hope (Fong, 2015). “When Sparta
was born, both of you were able to work together to organize your lives in a way that satis-
fied Sparta’s best interests. How can you reorganize your lives now, so you may once again
collaborate for Sparta’s sake?” In this example, the mediator uses past positive patterns to
promote hope and to overcome resistance to change.
Role- reversal questions invite one client to assume the other person’s position and con-
sider that person’s perspectives (Mayer, 2009). Mindy might ask Nadine, “Assume you are
in Ellyn’s situation. You have a job that requires a lot of travel and you have not been able
to spend as much time with Sparta as you would have liked. Now, you are going through
a separation process. How would you feel if you were told that you have no right to spend
time with Sparta because you ignored him during the marriage?” Role- reversal questions
invite clients to consider how the other person might hear, interpret, or respond to a situ-
ation from the other person’s point of view. Such questions facilitate insight and empathy,
and may also facilitate recognition. In response to the forgoing question, Nadine might
respond, “If I were Ellyn, I would be angry. I know she wants to spend more time with
Sparta.” In high- conflict situations, clients may have a tendency to resist being put into the
other person’s shoes. Nadine might say, “I don’t know what Ellyn’s thinking. She chose a
certain career, so she needs to accept the consequences of her choices.” Using a motiva-
tional interviewing strategy, the mediator may simply roll with the resistance (W. Miller
& Rollnick, 2012). Rather than insisting that Nadine look at the situation from Ellyn’s
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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364 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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perspective, Mindy could use paraphrase to validate Nadine’s response and shift to another
line of conversation.
Presuppositional questions assume that a certain type of change will occur, inviting cli-
ents to discuss how and when that change will take place. Mindy knows there is a high level
of anger between Ellyn and Nadine. To promote a rebuilding of trust, Mindy asks a future-
oriented question, “How will you know when it is time to let go of the anger and move on
with your new lives?” The mediator could also frame a presuppositional question from the
child’s perspective. “How do you think Sparta’s life will change when you’ve reached an
agreement and put this conflict behind you?” The mediator stimulates a new way of think-
ing and interacting, inviting the parties to envision a more positive future from the child’s
perspective. The mediator does not dictate what agreement they will reach, allowing the
parties to decide how they will move toward this positive outcome.
Predicting the next step is also a future- oriented strategy. The mediator states a hypoth-
esis about how one client may want to react and then invites the client to build on that
hypothesis. Ellyn and Nadine are arguing over whether Sparta should go to day- care or stay
at home with Nadine. “Ellyn, it sounds as if you want feel that Sparta would benefit from
interactions with other children in day- care, but Nadine thinks that you’re ignoring her
concerns about Sparta’s need for stability. I sense that you’re open to discussing Nadine’s
concerns. Would you like to offer some options that take Nadine’s concerns and yours into
account?” The mediator’s intervention presupposes that Ellyn is willing to discuss Nadine’s
concern, while still allowing the client to agree or disagree.
Exception- oriented questions help clients move away from problems and focus on
strengths and solutions. The mediator may ask questions to raise clients’ awareness of times
or instances when things are different from what they are projecting. If Ellyn and Nadine
were discussing how much they distrust each other, Mindy might ask, “Can you think of a
time when you were able to trust each other? What was that like?” If Nadine says that Sparta
is always very clingy and does not want to spend time with Ellyn, Mindy might inquire, “I
wonder if there have been certain times when Sparta is less clingy. Tell me about an occa-
sion when Sparta wanted to spend time with Ellyn?”
W hile the questions in this section can be very helpful in stimulating new thoughts
and patterns of behavior, they can also be risky. Clients could feel defensive or may per-
ceive the mediator as being biased. As noted earlier, mediators need to use family sys-
tems questions in a respectful, balanced manner. They should not take sides or impose
their beliefs on clients. W hen clients perceive the mediator is asking questions out of
sincere concern, empathy, and hope for the clients, they are more likely to respond
positively.
Rational Emotive Behavior Strategies and Skills
Rational emotive behavior therapy (REBT) focuses on the relationship between experi-
ences, thoughts, emotions, and behaviors (Moore, 2014). According to Albert Ellis, creator
of REBT, a person’s emotional reaction to a situation is affected by her thoughts about the
situation (Ellis & Ellis, 2011). In some instances, people have irrational thoughts that lead
to problematic emotional and behavioral responses. The role of the helping agent is to help
clients overcome the tendency to think irrationally, thereby improving their emotional and
behavioral responses to the situation (W. Ross, n.d.). Although REBT was developed for
use by psychotherapists, its approach can be incorporated into the mediation process with-
out becoming therapy, per se. In many conflict situations, clients have strong emotional
reactions that make it difficult to manage the conflict. If mediators can help clients cor-
rect misperceptions, misattributions, overgeneralizations, or other problematic thought

Family Mediation and a Therapeutic Approach 365
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patterns (as described in Chapter 2), they can help clients feel and respond more positively.
To illustrate, consider the following situation:
Lois and Lemont lived together for 6 years. They have 2- year- old twins, Tasha and
Tori. Although Lois wanted to get married throughout their cohabitation, Lemont kept
delaying marriage, saying, “Who needs a marriage certificate to say that our love is for-
ever?!” Recently, Lemont moved out of the house. Tasha has autism and Lemont was
having difficulty dealing with her. Their pastor refers Lemont and Lois to Maris to medi-
ate their separation. When Maris meets Lois for premediation, Lois presents as glum
and brooding. She tells Maris, “I must be an idiot. I should have known he had problems
with commitment. He never wanted to marry me and he was always more concerned
with himself than anyone else. I’m so stupid.”
In this situation, Lois feels despondent because Lemont has moved out. Using REBT to
conceptualize the situation, Maris notes that Lois’s emotional reaction is related to her
thought processes in interpreting the situation. Lois feels depressed because she thinks she
is stupid. She blames herself for not recognizing possible signs that Lemont was not truly
committed to the marriage and family. She is beating herself up because she thinks she
should have known better. Maris can help Lois challenge her irrational belief that she is stu-
pid by raising questions to facilitate insight (W. Ross, n.d.). “Where is it written that you
should have known that Lemont was going to leave you?” Maris can then help Lois develop
more positive thought processes, helping her realize that she is a smart, caring person who
wanted to make her relationship with Lemont work. Maris can help Lois see that even if
she did miss some signs that Lemont was not committed to the relationship, she is still that
smart, caring person. “Smart, caring people sometimes miss early warning signs about the
trouble ahead.”
Lois may also be misattributing Lemont’s intent to hurt her by leaving. “He’s such a
jerk. All he thinks about his himself. He has no concern for me or for the children. I’m not
going to let him see Tori and Tasha. He deserves to suffer.” Lois feels hurt. The mediator can
certainly start with the client by validating her pain and giving her permission to express
her anger (L. Parkinson, 2011). Using REBT, however, Maris can also help Lois understand
that Lemont may not have been trying to hurt her or the children. Maris could ask Lois
about the various possible reasons behind Lamont’s decision to leave. With Lemont’s per-
mission, Maris could also disclose the reasons he wanted to separate: his difficulty dealing
with Tasha given her autism, stress in the marital relationship, and a belief that the children
would be better if Lois and Lemont were living separately. Initially, Lois believes that love
and family are forever. “Only a selfish or callous person would break up a family.” While her
anger with Lemont is understandable, it could get in the way of moving on and building a
better future for the family. If Maris can help her see that Lemont intent was not malicious,
Lois may still harbor anger toward Lemont; however, she may also be able to approach
coparenting in a more positive manner.
Another approach to confronting irrational beliefs is to ask questions about emergency
situations (L. Parkinson, 2011). Assume Lois has been saying Lemont should have no fur-
ther relationship with the twins. She believes it is not in their best interests. Lois wants
nothing to do with Lemont. She never wants to talk with him again. The mediator could
inquire, “What would happen if you died or if you were in an accident and couldn’t take
care of Tori and Tasha?” Emergency questions help clients think about what matters most.
Although she may not be totally happy with Lemont having a role in the children’s lives,
she may realize that his involvement could serve positive purposes— particularly in emer-
gency situations. Maris could help Lois understand that while it may be difficult to address
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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366 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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conflict with Lemont in the short term, dealing with the conflict now may be for everyone’s
benefit in the longer term (Mayer, 2009).
Maris may also assist Lemont with irrational beliefs. For instance, he may want to go to
court because he thinks Lois is will never agree to anything he wants. He feels frustrated
and vengeful. Two potentially irrational thoughts are embedded in Lemont’s responses: He
is assuming that Lois has no capacity to reach agreement with him, and he is assuming
that court will lead to better outcomes than mediation. “I’m going to fight for my children.
I don’t care if it takes every cent I’ve got!” One way to facilitate insight is to surprise the cli-
ent by agreeing with him (L. Parkinson, 2011). “Maybe it would be better for your children
if you went to court and spent all your money on litigation rather than mediation.” This
response opens discussion about the pros and cons of going to court, and spending money
on a fight.
Assume Lemont feels highly anxious about spending time alone with Tasha. “I don’t
know how to relate to my own daughter. I’m such a failure.” In this situation, Lemont is not
living up to his own expectations as a father. He has hidden his true reasons for separat-
ing from Lois because he feels ashamed and guilty. Left unabated, Lemont may continue
to distance himself from Tasha. The mediator can help Lemont reassess his beliefs about
what it means to be a good father. Lemont may come to realize that many fathers (and
mothers) feel inept or lacking skill in some aspects of raising children. Good fathers do
not run away. A good father recognizes when he needs help and he reaches out for that
help. The mediator could help link Lemont with services that can help him learn more
about parenting children with autism, as well as support groups that can offer mutual aid
and moral support.
The preceding examples illustrate REBT strategies applied in individual sessions or cau-
cuses. REBT analysis and strategies may also be used to help both clients deal with irratio-
nal thoughts in joint sessions. Assume Lemont and Lois have reached impasse over how to
share time with their daughters. They feel frustrated and want to terminate mediation. They
may be assuming there is no way out of the impasse even though they have not explored all
the options. To provide insight into their situation, Maris could use metaphoric storytell-
ing. “Imagine the two of you are in the middle of a maze. You do not know the way out of
the maze. You keep going down the same paths and keep getting stuck. What’s the best way
to get out of the maze? [pause] How would arguing help you get out? [pause] Other than
going down the same paths over and over, what could you do?” They could mark the paths
they have tried to avoid simply repeating them. They could go over or under the barriers
rather than just following the walls and turning back at each barrier. This metaphor could
stimulate discussion about approaching the timesharing issue from different perspectives,
using creative thinking, not giving up, and not simply going down the same dead- end paths.
The reality of divorce can be tough. Clients may be experiencing financial stress, rejec-
tion, loss, embarrassment, and other issues. Although the reality of the client’s situation
may be unpleasant, it may be unduly complicated by irrational thought processes leading to
frustration with themselves, others, or their life situations. Mediators can use REBT to help
clients overcome such frustrations by facilitating three types of unconditional acceptance:
1. Unconditional self- acceptance— “I am a fallible human being; I have my good points
and my bad points.”
2. Unconditional other- acceptance— “The people who treat me unfairly are no more wor-
thy and no less worthy than any other human being.”
3. Unconditional life- acceptance— “Life is not necessarily pleasant but it is never awful
and it is nearly always bearable.” (W. Ross, n.d.)
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 367
367
By facilitating such insights, mediators can help clients engage in conflict resolution more
effectively.
Narrative Strategies and Skills
Narrative therapy builds on social construction theory, which posits that there is no sin-
gular, objective reality but rather an array of realities that people construct through their
language and storytelling (Berger & Luckman, 1967; Neimeyer, 2006). Stories capture the
lived experiences of people, encapsulating feelings, thoughts, knowledge, memories, and
understandings. Some stories that people tell are empowering, liberating, and inspirational.
For instance, a divorcing couple could view themselves as turning a new page, appreciating
the love and life they shared, and ready to move on with new energy and opportunities.
Other stories are constraining, problem saturated, and blaming. For example, a separating
couple tells a story of shattered dreams, loneliness, and acrimony. Storytelling is important
in various models of mediation, as it allows clients to vent emotions, reflect on what has
happened, and identify issues to discuss and problem- solve. Mediators can also use narra-
tive strategies to help clients deconstruct and reconstruct their stories so they can manage
conflict in a more positive manner (Winslade & Monk, 2008).
Deconstruction refers to analyzing narratives, exploring the symbolic meanings of their
experiences and the stories they tell (W hite, 2011). W hen analyzing narratives, media-
tors may encourage clients to reflect on the ways that family, culture, media, and other
social systems have affected their stories. Often, our stories are constrained by structural
constraints or expectations. For instance, a client’s story may be affected by laws, religious
beliefs, and community norms that impose limits on what is appropriate or inappropriate
behavior. Consider the messages that we receive regarding marriage and divorce. Wedding
vows typically suggest that the bonds of marriage are forever. Each spouse makes public
promises, for instance, to love, honor, and respect the other person for all the days of their
lives. Within this context, the story of divorce may be expressed as a breach of vows, a
failure, or a sign of dishonesty and irresponsibility. Although many people have images
of divorce as nasty, devastating, or adversarial, divorce stories could also be framed as
respectful, empowering, and collaborative experiences. Thus, to help parties deconstruct
the meanings they attach to their narratives of marriage and divorce, a mediator might ask,
“W hat are the stories that your family and cultural community have taught you about mar-
riage and divorce,” “W hat does divorce mean to you,” and “How might these stories make
it more difficult for people to go through divorce?” Deconstruction helps clients identify
social forces that have shaped their perceptions, including how dominant narratives in
society may be having a negative impact on their current experiences of separation and
divorce (Winslade & Monk, 2008).
Reconstruction refers to the process of retelling stories in a manner that clients can see
their conflict and future in a more positive light (White, 2011). “We’ve talked about the
meaning of divorce that you learned from important people in your lives. If you were to
start over and build the story of a ‘good divorce,’ what would a good divorce look like?”
Rather than being destined to acrimony and strife, the clients can rewrite their divorce story
to include acceptance, cooperation, and focusing on the child’s best interests. The mediator
does not try to engage parties in a search for objective truths, but rather an exploration of
stories that remove the problems or constraints of their original narratives. When helping
families rewrite their narratives, the mediator could help the family use positive reframes
and metaphors in their stories (as described in the introduction to this module). Consider a
family that describes itself as “at war” or “like a demolition derby.” The mediator could help

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them explore a narrative where, “we’re in this boat together” or “this family is a garden that
needs to be nurtured.”13
The following situation will help illustrate additional applications of narrative strategies.
Three years after Hank’s first wife died, he married Winona. Winona embraced Hank’s
infant daughter, Daisy, as her own. Winona and Hank were initially very happy together.
Two years into the marriage, Winona decided to separate from Hank because he did
not want more children. Having children was very important to Winona. Angered by
Winona’s rejection of their marriage, Hank told Winona she would have no further
contact with Daisy. “You are not Daisy’s real mother. You have no rights to custody or
visitation.” Winona’s attorney referred them to Merv, a mediator who uses narrative
mediation.
When Winona tells her story to Merv, it is saturated with problems. She views herself as an
innocent victim and Hank as a heartless traitor. After all, she accepted his daughter as if she
was her own child and now Hank is acting as if her relationship with Daisy was a meaning-
less sham. Winona also sees herself as a victim because Hank prevented her from having
other children. Hank says he is the victim because Winona initiated the divorce. In Hank’s
view, everything was fine until Winona started making demands about having more chil-
dren and callously discarded the marriage when she did not get her way. Winona and Hank’s
narratives are typical of many conflict stories in which each party paints the other side as
evil or blameworthy (Winslade & Monk, 2008). Merv helps Winona and Hank unpack
the assumptions and constraints embedded in their stories. “What does it mean to be a
real parent?” and “What are the images that we’ve learned about stepparents, and how are
the different from biological parents?” These questions open discussion about parents as
people who love and support their children, as well as fairytales and images of stepparents
as evil, jealous, and devious. To help Winona and Hank construct a new story, she frames
her question from Daisy’s perspective. “What stories do you want Daisy to be able to tell
her children about how she was raised, and what types of models that both of you were as
parents?”
Often, the animosity or resentment between separating couples makes it difficult
to think about a future with a more positive relationship. A narrative technique called
“externalizing the problem” may be used to help clients separate the person from the
problem. W hen clients ascribe evil, heartlessness, or other negative labels to each
other, the mediator can help them externalize the problem by labeling a problem that
exists outside the people, but has a negative impact on them. “If you were to describe a
problem that makes it difficult to cooperate, what would you call that problem?” They
might label the problem as Disappointment, Resentment, or Animosity. Merv could
then inquire, “How would your lives be different if you could lock Animosity in a box
and you didn’t have to deal with it anymore?” Externalizing the problem helps clients
develop distance from contentious feelings and open their minds to the possibility of
a more positive future (Billikopf, 2014). If one client labels the other as an alcoholic,
the mediator could externalize the problem by asking, “How does Alcoholism make life
challenging for the family?” Likewise, if a client is labeled as irresponsible, the mediator
could ask, “ W hat would the family look like if Irresponsibility took a vacation and never
came back?”
13 In one case when I used this metaphor, a client suggested that we start by pulling out the nasty weeds—
clearly alluding to the other party.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 369
369
If clients are not focusing on the child, another method is to have the parents bring
photographs of the child into the session. The mediator could then ask each parent to tell
stories about the child, focusing on her talents, strengths, and positive attributes. Once the
clients start focusing on the child, the mediator could ask, “Please describe a time when
both of you were contributing to Daisy’s happiness and well- being.” The mediator could
also invite discussion about constructive ways of dealing with conflict. “Let’s talk about a
time when you had a difference of opinion about how to be good parents to Daisy. How
did you overcome your differences so you could do what was best for her?” By highlighting
positive stories from the past, the mediator fosters conditions for the clients to create an
alternate story moving forward.
Initially, Hank wants sole custody with Winona having no rights of visitation or access
to Daisy. Merv might invite Hank and Winona to explore two different stories, one in which
Winona disappeared from Daisy’s life and one in which she continued to have a role. “Let’s
talk about the first option first. Hank, what would it be like to raise Daisy on your own?
What are some of the good and some of the not- so- good things about being a single par-
ent?” Merv could then help them explore stories in which Winona continues to maintain
a relationship with Daisy. “Now, let’s envision a future where both of you continue as co-
parents for Daisy. In an ideal situation, what would coparenting look like?” Winona or Hank
may resist this discussion, noting that this is not the ideal situation. Merv could respond
by validating their concerns, allowing them to talk about the potential problems, while
also helping them imagine a more positive story. If they want to discuss a “realistic” story,
they could construct a story that includes both good and not- so- good experiences (Mayer,
2009). Although they do not envision themselves as “best of friends,” they could envision
a more businesslike, respectful relationship as coparents. Narrative mediators can help cli-
ents focus on stories that facilitate more collaborative relationships, while validating that
future conflict and challenges are to be expected. The preferred story moving ahead is not
a relationship without conflict, but rather a relationship that deals well with differences (R .
Fisher & Brown, 1988).
Solution- Focused Strategies and Skills
Solution- focused therapy (SFT) is a strengths- based brief intervention designed to help
people progress toward specific outcomes that will have positive impacts on their lives
(P. De Jong & Berg, 2013; Institute for Solution- Focused Therapy, n.d.). Many strategies
and skills from SFT fit naturally with an interest- based approach to mediation as they
emphasize problem solving. However, they also have a therapeutic element as they build
on the resilience and capacities of the clients, empowering them to continue to make
positive changes in their lives beyond the formal intervention process. SFT strategies
that can easily be incorporated into mediation include looking for previous solutions,
looking for exceptions, validating what is working, inviting clients to do more of what
is working, coping questions, miracle question, and scaling (P. De Jong & Berg, 2013;
Ratner, George, & Ivenson, 2012). To illustrate the use of these strategies, consider the
following situation.
Grandma Ginny is 83 years old. She has been living on her own until recently, when she
fell in her bathroom and broke her hip. She is recuperating in the hospital, anxiously
awaiting discharge. Desiree, the discharge planner, schedules informal mediation with
Grandma and her two adult children, Cyrus and Catriona. Given Grandma’s broken
hip and her early stage dementia, Cyrus and Catriona both realize that Grandma can
no longer live alone. They cannot afford to place her in a nursing home. Neither child

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wants to take Grandma into their home because a long history of “conflict and grief with
Grandma.”
Adopting a solution- focused orientation, Desiree does not delve into the long history
Grandma’s relationship with her children. She does not need to assess how the conflict
started or why it seems to be acrimonious. Desiree can ask focused questions about the
past, particularly in terms of looking for previous solutions. W hen people are stuck in con-
flict, they may not be aware that the solutions they seek may be ones they have used in the
past. Thus, Desiree might inquire, “I know this is the first time that Grandma has had a seri-
ous accident and I know it’s hard to think of the best way to care for her now. I’m wonder-
ing if we could think about other situations when someone in the family had an accident or
took ill. How did the family care for this loved one in his or her time of need?” Identifying
previous solutions has two potential benefits. First, it may help the family identify a solu-
tion that they could use for the current situation. Secondly, it reinforces the family’s sense
of self- efficacy; they have had the strength and resources to deal with difficult situations
in the past, so they may realize they possess similar capacities to deal with the current
situation.
When people are engaged in conflict, they may focus on the problems and negative
aspects of the situation. The strategy of looking for exceptions helps families focus on possi-
bilities and strengths rather than obstacles and weaknesses. Catriona and Cyrus say that they
cannot be with Grandma for any extended length of time. Every time they spend more than
a few hours together, they end up screaming and arguing. Desiree invites them to consider
exceptions. “I understand that being together for more than a few hours has been frustrating.
Can you think of a time when you spent time together and things were pretty good, perhaps
even wonderful?” Cyrus and Catriona might recall a family trip, many years ago, when every-
one did get along. There were no major fights and the whole family enjoyed themselves.
Desiree can then help them build on this experience, exploring factors that made this occa-
sion a positive exception. For instance, they were away from their homes and usual routines,
they were touring the beautiful mountains, and they had one vital rule … if you’re getting
upset or claustrophobic being cooped up with the family, take a walk. Initially, family mem-
bers may not think that the exception has any relevance to the current situation. However,
they may be able to build on that experience to help resolve the current conflict. Focusing on
positive exceptions also fosters positive expectations and possibilities, which may facilitate
option generation for mutual gain.
The strategy of validating what is working refers to complimenting clients for interact-
ing in a positive manner or behaving in a manner that promotes effective resolution of the
conflict. Grandma expresses embarrassment that neither of her children want to spend time
with her. She feels rejected. Desiree might reframe the situation and offer a compliment.
“Grandma, I hear that the respect and dedication of your children means a lot to you. I do
want to commend all of you for coming today to make arrangements for Grandma’s health
and well- being.” As a mediator, using validation can be tricky because it may affect neutral-
ity. If the mediator commends a particular type of behavior, the mediator may be showing
bias toward a particular person or solution. Commending all parties in a mutual manner
or focusing on process issues is relatively safe. Commending one person for a particular
action may be riskier. Assume Cyrus offers to take Grandma into his home for the summer
months. If Desiree responds, “That’s a great offer, Cyrus,” Catriona might think Desiree
is siding with him. One way to foster neutrality is through equidistance, that is, ensuring
that the mediator balances support for one party with support for the other party. Thus,
if Desiree compliments Cyrus, she should make sure she also compliments Catriona and
Grandma— not necessarily at the same time, but ideally close in time. Validating what is
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 37 1
371
working supports progress and encourages people to continue to move ahead in a positive
fashion.
Inviting clients to do more of what is working refers to identifying positive patterns of
behavior and asking clients if they would like to continue that pattern. Thus, if Grandma,
Cyrus, and Catriona start brainstorming creative solutions, the mediator could encourage
them to continue. “We’ve talked about sending Grandma to a commune, having Catriona
open a nursing home, and buying a motorhome so Cyrus and Grandma can tour the coun-
try together. What other creative options are there?” Once again, mediators should be care-
ful with this strategy to avoid perceptions of bias. Assume they agreed to a short- term trial
arrangement where Grandma lives with Cyrus and Catriona visits during the evenings to
give Cyrus respite. When they return, Desiree might say, “The temporary arrangements
seem to be working. Perhaps you could continue them.” If Desiree’s comments are based
on her own assessment of what is working, then she is imposing her beliefs. Alternatively,
Desiree could ask the clients what is working and help them build on the positives. “Let’s
talk about what worked well over the past week. What have you learned and what can
we build on to ensure positive living arrangements for Grandma over the longer term?”
Helping clients identify what is working is more empowering, as they use their own insights
to further the conflict resolution process.
Coping questions are similar to inviting clients to do more of what is working. Both strat-
egies invite clients to reflect on the past in order to determine what would be beneficial for
the future. Coping questions specifically ask clients to ponder strategies they have used
to manage or cope with particular problems, conflicts, or stresses in their lives. Grandma
Ginny and her family are struggling with how to deal with her memory loss. Desiree might
explore their prior means of coping with this concern. “Having dementia can be stressful
for the whole family. What are some ways that you’ve coped with this stress in the past?”
Here the intent is not to fix or overcome the problem, but to identify ways to cope and adapt
despite the problem. Catriona might respond, “Humor helps. Sometimes I tell myself that
I’m lucky Grandma asks the same question over and over. I know my answer even before
she’s finished the question.” Other coping strategies the mediator could help them iden-
tify include diversions (taking a walk), accessing help (talking to another family member),
positive self- talk (I am patient and loving), and mindfulness (e.g., through meditation). The
key is helping clients identify ways of coping that work for them.
Perhaps the most recognized technique from SFT is the miracle question. Essentially,
the mediator (or other helping professional) invites clients to consider how things would
be different if their lives magically transformed into an ideal situation (P. De Jong & Berg,
2013). Miracle questions inspire people to dream big and think outside the box. They also
help people focus on what could be and what they might be able to do to build a better
future. Desiree might query, “Imagine that you woke up tomorrow morning and, magically,
the conflict we’ve been discussing would be no more. Everything would be perfect. How
would your situation be different?” Alternatively, the miracle question might be phrased,
“Assume you have a magic wand that you could wave and suddenly, the family’s situation
would be perfect. What would this perfect situation look like?” Clients might describe a
situation that is perfect, and also unattainable. Still, their responses may spur creative think-
ing and solutions. Assume Grandma responds, “I would be young and healthy.” Desiree
could ask for details about being young and healthy. The family might discuss Grandma
having independence, being free to move around that house and beyond, and regaining
her memory. Rather than negotiating “who gets stuck with an old and infirm Grandma,”
the discussion turns to how they can foster Grandma’s health, independence, and memory.
Even though they do not have a machine that can turn back time, they can implement strat-
egies to improve Grandma’s life situation … as well as Catriona’s and Cyrus’s. They talk
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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about rehab services, occupational therapy, memory interventions, and modifications to
their homes that can improve everyone’s quality of life. Although the process begins with
discussion of an unattainable miracle, it can lead to development of concrete, feasible solu-
tions. Even baby steps toward the grand miracle may be worth the effort.
Scaling questions invite clients to operationalize their goals or preferred outcomes
(Ratner et al., 2012). Assume the family’s goal is to lower its level of conflict. Initially, the
mediator may ask clients to quantify their current situation. “On a scale of 0 to 10, with 0
being no conflict, 5 being moderate conflict, and 10 being extremely high conflict, how
would you rate the level of conflict in the family?” Different family members may have dif-
ferent ratings, which is fine. They may have different perceptions and they do not need to
agree on “what is.” The mediator could then ask family members to describe what it means
to be at a certain rating. “You’ve rated family conflict as an 8. What are some examples or
indicators that the conflict is at this level, as opposed to being at a level 10 or a level 5?”
The clients might describe examples of arguments, avoidance, yelling, frustration, or other
indicators. The mediator then turns the client’s attention to the possibility of improvement.
“How would you know whether the family was able to lower its level of conflict to a 7 or
a 6? What would people notice as different in the family?” The family might describe a
decrease in the intensity or frequency of conflict, or perhaps a slight increase in respect,
problem solving, or listening. The mediator then invites the family to take one small step
toward improvement. “What is something that each of you could do to help move this fam-
ily toward a 7 or a 6?” Client goals should be individualized to the clients’ situation. For
instance, they may want to work toward better communication, improved collaboration, or
resolving a particular conflict. In Grandma Ginny’s situation, for instance, they might work
toward a goal of Grandma’s independence. Scaling questions help clients identify goals and
develop strategies to work toward preferred outcomes. Although the stated goal may seem
ideal and overwhelming, scaling helps clients partialize their ultimate goal into more readily
achievable steps. As with other solution- focused strategies, scaling questions help people
mobilize toward more positive situations, which may include resolution of conflict.
INVOLVING CHILDREN IN MEDIATION PROCESSES
When working on parenting plans, the vast majority of mediators agree that it is appropri-
ate for mediators to focus parents on the best interests of the child.14 Mediators do not
impose their view of what is best for the child, but rather, invite parents as experts in their
own families to make this determination. Mediators hold disparate views, however, on the
issues of whether and how the child’s voice should be heard in the mediation process. Some
mediators suggest children should generally be included in mediation, because divorcing
parents have difficulty separating their own needs from those of the children (Lowenstein,
2009). Some mediators are open to bringing children into the mediation process, depend-
ing on the circumstances. Other mediators never meet with children. They may rely on the
parents, child’s lawyer, guardian ad litem, child’s therapist, child consultant, or other profes-
sional to express the child’s wishes (Ballard, Holtzworth- Munroe, Applegate, D’Onofrio, &
14 Some transformative mediators might argue that the clients are free to decide a parenting plan, without
restriction, and that it is not the role of a mediator to focus them on the child’s best interests. This view
could be problematic in that some mediator codes of ethics and standards of practice require family media-
tors to focus clients on the child’s best interests (Association of Family and Conciliation Courts, 2000,
Standard 8). Also, if clients reach an agreement that is not in the child’s best interests, then a vulnerable
child will suffer.

Family Mediation and a Therapeutic Approach 373
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Bates, 2013; L. Parkinson, 2011). Although family law statutes suggest that a child’s wishes,
views, or preferences should be considered when determining the best interests of the child,
such statutes do not stipulate how a child’s voice should be heard and what weight a child’s
voice should be given (Byrnes, 2011). This section explores factors that mediators should
consider when determining whether and how to include children in the mediation process.
One of the first factors to consider is the mediator’s competence. Does the mediator
have sufficient knowledge and skill to be able to involve children in a safe and effective
manner? For instance, a mediator lacking such competence might place a child in the inap-
propriate position of having to choose one parent over the other. An unskilled mediator
might also put undue pressure on a child who is already stressed about the changes in the
family arising from conflict since the separation. When working with children, good inten-
tions are not enough. Mediators need to understand their developmental stages, cognitive
abilities, emotional responses, motivations, and roles they play in the dynamics between
their parents.
The age of the child also plays a significant factor. Very young children may not have
sufficient cognitive understanding and communication skills to express their needs and
wishes. They may be highly anxious about the changes in the family, not fully understand-
ing what is happening during the separation process (L. Parkinson, 2011). Fearing rejec-
tion or abandonment (Emery, 2011), they may also be highly vulnerable to manipulation
by their parents. Older children may be in a better position to share views that may help
parents make better decisions. Although some mediators include children at a particular
age (e.g., 12 or older), maturity and other circumstances may be more important than the
chronological age of the child. The type of involvement also factors into whether younger
children should be included. For instance, some mediators meet with children to get to
know them and to explain the mediation process to them. In such cases, the mediator could
meet with children as young as 3 or 4 years. Other mediators meet individually with chil-
dren to give them an opportunity to express their concerns and wishes, which the mediator
will then share with the parents (L. Parkinson, 2011). For these purposes, children may
need to be at least 6 or 7 years, so they can adequately express their concerns and wishes.
In yet other mediations, children participate in joint mediation sessions with their parents.
When working with teenagers, for instance, it may be useful to involve them in meetings
with their parents because implementation of the parenting plan depends on the teenager’s
compliance. If a teenager is not willing to spend alternate weekends with each parent, for
instance, that teenager may simply refuse to go. Involving the teenager directly in mediation
allows the parents and teen to develop an agreement that meets all their interests.
When determining whether to involve children in mediation, the following factors
weigh against including them.
• The child is involved with other mental health professionals who are helping the child
adjust to the separation. The child may not need another professional prying into her
life. Also, the other professional may be able to provide the mediator and parents with
information about the child’s needs, interests, and wishes.
• The mediator is concerned that one or both parents will pressure the child to say certain
things or to maintain certain family secrets. “Don’t you dare say anything about my drink-
ing!” The mediator does not want to draw the child into the parents’ conflict or set up the
child for fear of reprisal by either parent (Ehrlich, 2013).
• The parents or child do not want the child to see the mediator. The mediator could
explore why they do not want the child to see the mediator, as there may be concerns the
mediator can address. Ultimately, the mediator should respect the wishes of the parties.
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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W hen discussing the possibility of bringing children into the mediation process,
mediators may help them identif y potential benefits of doing so. Research suggests
that the vast majority of children appreciate being included in mediation processes
(L. Parkinson, 2011). Children may fear having to go to court, but still want their voices
to be heard on matters affecting them (Weisz, Beal, & Wingrove, 2013). Direct par-
ticipation in mediation helps children become informed about the separation process,
including how parenting, legal, and day- to- day issues may be handled in the mediation
process. Parents may avoid talking with their children about their separation in order
to shield them from conflict. Children may feel relieved when the mediator helps them
understand mediation and how it may help their family. The mediator can also convey
reassuring messages from the parents to the children. “ Your mom and dad tell me they
love you dearly. They want you to know that their separation is not your fault. They
know the separation process has been difficult, and they want to do whatever they can to
ensure that you feel safe, loved, and supported. They asked me to tell you that although
they are divorcing each other, they are not divorcing you. Parents are parents forever.
They will continue to be there for you. Your parents asked me to meet with you so I can
hear your concerns. I can then share this information with your parents so they can
focus on your concerns during mediation.” Children value having their voices heard and
validated (L. Parkinson, 2011). By discovering children’s concerns, mediators can help
parents address them.
Before meeting with a child, mediators should talk to the parents about how they will
invite the child into the mediation process. “Please explain that I would like to meet with
your son so we can talk about the mediation process and any concerns that he thinks we
should be considering. It’s important that you tell him that it is OK to share whatever infor-
mation he wants to share. We want to avoid putting any pressure on your son. I will not be
asking who is the better parent or where your child would like to live. This is an opportu-
nity for me to get a better understanding of your son’s interests and to answer any ques-
tions about the mediation process.” The mediator may ask to meet briefly with the child
and parents together, to help the child become comfortable and to ensure that everyone
is on the same page regarding the format and purpose of the individual meeting with the
child. Regarding confidentiality, the mediator may explain that the intent is for informa-
tion from the meeting with the child to be shared with the parents. The mediator will not
necessarily report everything the child says. The mediator and child will work together
on what information will be shared, and how. For instance, the child may write a letter to
share with the parents, or the mediator may convey the child’s views directly to the parents
(L. Parkinson, 2011).
When meeting with children, mediators should let them know that some decisions
are the responsibility of the parents, for instance, the child’s primary residence. Mediators
should also let children know what types of questions and input from the child would be
helpful, for instance,
• questions about the mediation process,
• concerns the child has had about the separation process,
• examples of what each parent has done to make the separation process easier for the
child,
• examples of what each parent could do to make the separation process better for the
child, and
• suggestions for what the parents should think about when they are working out their
parenting plan (including timesharing, holidays, education, activities, and house
guidelines).
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
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Family Mediation and a Therapeutic Approach 375
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By meeting with children, mediators may identify a number of concerns that their parents
may not have considered:
• “When I go to my dad’s house, will I have to bring my own bed?”
• “Since my parents live in different cities and I have to go back and forth, am I going to
have to have two sets of friends and two different soccer teams?”
• “If each of my parents has a different set of clothes for me, does that mean that I have to
change clothes in the car when I get to my other parent’s house?”
• “Who gets custody of my hamster and my teddy bear?”
The mediator may also ask about particular concerns raised during mediation, for instance,
why the child may be refusing to spend time with one parent or why the child has been
struggling at school. If the child raises concerns that give rise to a reasonable suspicion
of child abuse or neglect, the mediator should report this information to child protection
authorities (as require by state law).
If there is more than one child, then the mediator and parents need to decide whether
the siblings should be seen together. The primary advantage of seeing siblings together is
that they may feel more comfortable. A potential disadvantage is that they may speak with
one voice— perhaps the voice of the eldest or most assertive child— so the mediator may
not get a complete sense of each child’s unique views. If the mediator meets with the chil-
dren together, the mediator may explain that it is OK if each child shares different views or
concerns. All voices are welcomed and valued.
When the mediator shares children’s views with the parents, the mediator could begin
with examples of what is going well and what the child appreciates. “You have a bright,
articulate daughter. She says she is glad that the two of you are working out a shared par-
enting plan. She particularly appreciates the calendar that lets her plan where she will be
from day to day.” The mediator can also reframe some of the child’s concerns about the
past into hopes for the future. A concern that a father is frequently late for pickup times
could be reframed, “Your daughter says that timeliness is important to her. She likes to
know exactly when she will be picked up, so she won’t get anxious or bored waiting.” What a
child voices as her concerns or wishes may or may not represent what is in her best interests
(Lowenstein, 2009). Still, hearing a child’s voice can be very helpful in focusing parents on
what is truly important— to the child, and perhaps to the entire family.
* * * * *
Conflict within families is to be expected. When families are experiencing challenging
transitions, mediation can help them manage the emotional, relational, practical, and legal
issues. Mediation can also lay a foundation for more effective communication, interactions,
and conflict management as the family establishes its new equilibrium.
KEY POINTS
• Family mediation can be used to help families manage a variety of conflicts and transitions,
including marriage, separation, divorce, parent– youth conflict, child abuse and neglect,
elder guardianship, end- of- life issues, family business disputes, and estate planning.
• Therapeutic family mediation helps clients address psychological, emotional, and rela-
tional issues in order to adjust to transitions, cope with stress, renegotiate family relation-
ships, improve interactions, and enhance family functioning.
• To be competent to provide divorce and separation mediation, mediators require
knowledge and skills pertaining to family law, family dynamics, child development,

376 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
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high- conflict situations, family violence, cultural diversity, and community resources and
supports.
• Therapeutic family mediators use premediation sessions and caucusing to assess family
dynamics and conflict, to prepare clients and attorneys for mediation, and to address
power and safety issues.
• Mediators can incorporate family systems strategies and skills, including structural ques-
tions, strategic questions, circular questions, role- reversal questions, presuppositional
questions, predicting the next step, and exception- oriented questions.
• Mediators can incorporate rational- emotive behavior therapy strategies and skills by
helping clients gain insight into irrational thoughts that may be leading to problematic
emotional and behavioral responses.
• Mediators can incorporate narrative strategies and skills by helping clients explore and
deconstruct stories that may be causing or maintaining conflict and problems, and by
helping them reconstruct stories to foster a more collaborative, positive future (e.g., a
relationship that can deal well with differences).
• Mediators can incorporate solution- focused strategies and skills such as looking for pre-
vious solutions, looking for exceptions, validating what is working, inviting clients to do
more of what is working, coping questions, miracle question, and scaling.
• To ensure that children’s perspectives are considered, family mediators can meet with
children individually, invite them into joint mediation sessions with parents, invite an
advocate to speak on their behalf, or focus parents on the views, wishes, and best inter-
ests of the children.
DISCUSSION QUESTIONS AND EXERCISES
1. AMBULANCE CHASING: Rajesh recently separated from Sushila. He is afraid of
going to court because of the high legal fees and adversarial relations it may spawn. He
calls you, a family mediator, to ask Sushila if she would be willing to mediate. Rajesh
tells you that Sushila is not familiar with mediation, but thinks the mediator will force
her compromise and give Rajesh joint custody of their son, Sunil. What are the benefits
and risks of contacting Sushila? What should you do, and why? If you decide to contact
Sushila, what would you say to her?
2. PREPARATIONS: Polly and Phil are engaged in a bitter custody battle over their chil-
dren, Cam and Chester. Assume you (as mediator) are meeting with Phil to help him
prepare for the first joint session. How would you respond to each of the following state-
ments from Phil? Provide your rationale for each strategy.
a. Polly always screams at the kids. She’s never going to change.
b. It’s no use talking … she’s not capable of being reasonable.
c. I don’t want to meet with Polly face- to- face. It just makes me more anxious.
d. I won’t talk to her until she apologizes for how she’s been using the kids as pawns, manipu-
lating them just to try to hurt me.
e. I get so upset when she calls my fiancé, “That twinkie.”
f. The kids are not safe with her. She has a violent temper.
3. “REAL” FATHER: When Yolanda and Seymour discovered they had fertility issues,
they agreed to use sperm from an anonymous donor. Initially, both parents were exhila-
rated with the birth of their son, Aubrey. Within the past year, they noticed Aubrey was
not developing normally. He was diagnosed with a severe intellectual disability. Given
Aubrey’s intellectual challenges, Seymour wants him placed in a special institution.
Yolanda refuses, so Seymour moves out. During intake for mediation, Seymour

Family Mediation and a Therapeutic Approach 37 7
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tells you (as mediator) that he is not Aubrey’s real father so he wants nothing to do with
Aubrey. He also says he has no financial obligation toward him. As mediator, what ethi-
cal issues does this situation raise for you? What types of emotions might be affecting
each parent? What strategies would you use with Yolanda and Aubrey to help prepare
them for mediation?
4. DOG FIGHT: Delta and Doug are divorcing. They ask you to help them mediate cus-
tody of their prized canine, Carl, on the basis of “the best interests of the pet.” You
believe that dogs are covered by the equitable division of property laws, not child cus-
tody laws. Doug and Delta insist Carl is like a child to them, not an inanimate piece of
property. How should you deal with their request, and why?
5. POWER OF GENDER: Some critics of mediation suggest that mediation systemi-
cally favors men because women generally have less power than men (e.g., lower sala-
ries, less likely to control family finances, perceptions of lower status, less competitive
or assertive) (L. Parkinson, 2011). How can family mediators assess whether such
power imbalances exist with a particular couple? If such imbalances do exist, how can
the mediator redress them? In what ways might women have more power than men?
6. DELAY TACTICS: Ferdinand seems to be doing everything he can to delay media-
tion: canceling meetings, asking to extend deadlines for sharing financial information,
and arguing ad nauseam during mediation. The mediator thinks he is not mediating in
good faith but does not want to make such an accusation, for fear of losing neutrality.
How should the mediator handle the situation?
7. CHILD FOCUS: If a family mediator uses her control over the process to focus the
parents on the child’s best interests, the parents may feel their own concerns and inter-
ests are not being heard. If the mediator does not focus the parents on the child’s inter-
ests, the parents may develop an agreement that focuses on their interests rather than
the child’s (L. Parkinson, 2011). What is the appropriate role of a mediator in relation
to focusing parents on their child’s interests versus their own?
8. SKILL FACTOR: For each of the following mediator responses, identify whether it is
an example of a structural question, strategic question, circular question, role- reversal
question, presuppositional question, predicting the next step, and exception- oriented
question:
a. How did your relationship change after you each hired an attorney to help with the
divorce?
b. It sounds like your son does not like playing the role of messenger between the two of you.
Let’s take him out of the middle. What role could he play so that he does not have to be a
pawn in the middle of your conflict?
c. Assume that you are able to resolve the trust issue. How would your relationship as copa-
rents be different if the two of you had a high level of trust?
9. ANGER AND IRRATIONALITY: Vera is virulently angry with her husband, Bart.
Unbeknownst to Vera, Bart mortgaged the house to invest in a risky business ven-
ture. W hen the venture tanked, they lost their house and all their savings. Vera
took the children and moved in with her mother. She refuses to allow Bart any con-
tact with the children. During intake, the mediator assesses that Vera’s anger may
impede effective mediation. How might the mediator use strategies from REBT to
prepare Vera for mediation? How could the mediator use strategies from SFT to
prepare Vera?
10. THE STORIES WE TELL: Write a paragraph recounting one of the interesting sto-
ries that your family frequently tells about your grandparents’ marriage (or an inter-
esting story of another marriage in the family). Given this story, what does the family
value most? Fear most? W hat are the messages in this story concerning how family
Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford
University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771.
Created from liberty on 2020-02-16 20:29:36.
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MeMor anduM of under standing
Dear Maude and Harold:
This letter is to summarize my understanding of the arrangements that we reached in
mediation on July 11, 20XX. This is not a formal or binding agreement, though you
have agreed that I would send copies of this letter to your attorneys for their review.
They can advise you of the best way to proceed in order to formalize the agreement
and ensure that both of you can follow the terms of the agreement in the best interests
of your 5- year- old daughter, Damagina. If you have any questions or concerns about
this summary, please do not hesitate to contact me:
1. Because Maude slept around during marriage, it is in the best interests of Damagina
to be kept in the possession of her father, Harold.
2. Harold will let Maude see Damagina for visits every other weekend, until she is
18 years old.
3. When Maude is babysitting Damagina, she will heretofore not accept any men
into her house and expose Damagina to any activities of a lewd or adulterous
nature.
4. Birthdays and holidays will be as agreed.
5. Both parents will raise Damagina in good religious practice and values, and Maude
will go to church with Damagina whenever they are together on a Sunday.
6. Harold will pay for all of Damagina’s stuff, including her clothes.
7. Maude will pay child support as soon as she gets a good job.
8. Damagina used to wet her bed, so it is important for both parents to treat each
other with respect and not to castigate one another.
9. If there is any more conflict, I will mediate it for you.
Thank you for all the hard work that you invested in mediation. You showed that you
love Damagina enough to ensure that her best interests always remain the focus of
your attention and care.
Sincerely,
Marvinelle the Magnificent Mediator
members should approach difficult issues, such as divorce, death, or high conflict in
the family? If you could magically change one aspect of this story, what aspect would
you rewrite?
11. MOU: Review the following “Memorandum of Understanding,” which is based on a
divorce case involving Harold, Maude, and their daughter, Damagina. Identify prob-
lems with the way that it is written. Rewrite the memorandum to ensure that it is:
• clear (using plain language rather than legalese; avoiding ambiguous language),
• specific (but not too detailed, given the nature of the situation and the expected
needs of the parties),
• impartial (avoiding bias or imbalance), and
• focusing on positives and the future (rather than negatives or the past).

Family Mediation and a Therapeutic Approach 379
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ROLE- PL AY 8.1: “DIAS DIVORCE”— PREPARATION
Mrs. Dias and Mr. Dias have recently separated. Mr. Dias’s lawyer, Ms. Lopez, filed an
application in court requesting interim (temporary) custody of their two children, Lenny
(age 5) and Skeeter (age 7). Mrs. Dias does not have a lawyer. A judge hearing the appli-
cation ordered Mr. Dias and Mrs. Dias to go to mediation. Ms. Lopez is not a big fan of
mediation, but she agreed to contact a mediator, Michael Moore, and arrange for the
parties to go for mediation. This role- play involves a telephone call between Ms. Lopez
and Michael.
Ms. Lopez will initiate the phone call and ask about mediation services for the Dias
family. She will let the mediator know that she does not generally trust mediation because
mediators tend to favor women, information in mediation could be used in court, and
mediators do not know enough about the law to advise clients properly or help them
win their rights. The only reason she is initiating the referral is because of the judge’s
order. Ms. Lopez suggests that Mrs. Dias is mentally ill, with paranoia or something, so
mediation may be inappropriate. Both Mr. Dias and Skeeter have a speech impediment
(stuttering).
To prepare for this role- play, Michael should consider how to explain his therapeutic model
of mediation. He should also consider how to address possible concerns raised by Ms. Lopez,
including her distrust of mediation and her suggestion that Mrs. Dias is mentally ill.
Debriefing : What strengths did the mediator exhibit in terms of explaining TpM? How did
the mediator deal with concerns related to alleged mediator bias? How should the mediator deter-
mine whether Mrs. Dias has sufficient mental capacity to participate in mediation? What power
issues were raised during the role- play? How should the mediator address these power issues?
ROLE- PL AY 8.2: “FAMILY PL ANNING”—
CULTURAL INTERPRETER
For this role- play, team up with a person from a different cultural background. One of you
will role- play a mediator. The other will play a cultural interpreter. The mediator is help-
ing a couple negotiate a prenuptial agreement. The couple wants to mediate the following
issues: the number of children and approximate timing for having children; whether one or
both spouses will work outside the family home; and how they will make decisions about
parenting issues, such as discipline and education. The couple is from a different back-
ground than the mediator, so the mediator arranges to meet with a cultural interpreter to
gain a better understanding of cultural issues that may be raised in this case.
The mediator should plan what types of questions to ask the cultural interpreter in order
to prepare for this meeting (e.g., “What are the norms within this culture about parenting?”
“What happens within the community if people do not follow the norms?” “What mean-
ings do parents give to the roles they play as mother or father?”). During the meeting, the
mediator should treat the interpreter as an expert and demonstrate deep interest in learning
from the interpreter. The cultural interpreter should draw from his or her culture to answer
the mediator’s questions. The role of the cultural interpreter is to educate the mediator. The
interpreter may not feel comfortable making generalizations about his or her culture. If so,
the mediator can validate these concerns and negotiate what types of information the inter-
preter would be willing to share. For further information on the process of ethnographic
interviewing, see C. Frank (2011).
Debriefing : What did the mediator learn about the family’s culture? How would this informa-
tion affect the way that you mediate with the couple? What ethical issues does this scenario raise
for the mediator?

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ROLE- PL AY 8.3: “GRANDPARENT RIGHTS”—
NARRATIVE STRATEGIES
For this role- play, a mediator (Marta) will be meeting with Fabian and his mother- in- law,
Lucille. Fabian’s wife, Whitney, died in a car accident. Lucille blames Fabian for her daugh-
ter’s death, as Fabian was driving while drunk. Fabian is the sole parent and guardian for
his three children, Corey (age 13), Calla (age 11), and Charlotte (age 8). Fabian refuses to
allow them to spend time with Lucille. He is concerned that Lucille will turn the children
against him. Fabian admits to drinking on the night of the fatal accident, but he does not see
himself as an alcoholic. Lucille has pursued visitation under the state’s grandparent visita-
tion rights laws. Lucille contends, “As the children’s only living grandparent, I have a right
to help raise these children. They need me, particularly since their father cares more about
drinking than he cares about his family.” Fabian believes, “Parents have the right to make
decisions for their children, including who they see and who they don’t see.” For this role-
play, Marta will use a narrative approach, first listening to Fabian and Lucille’s stories, then
helping them deconstruct the problems and constricting aspects of their stories. Marta will
then help them construct a more positive story to help them manage their current conflict.
Debriefing : What key themes emerged from Fabian and Lucille’s original stories? How did
these themes affect the way they handled the conflict over Lucille’s rights and roles with her grand-
children? What did the mediator do to help them construct a story that facilitated better collabo-
ration or conflict resolution?
ROLE- PL AY 8.4: “PARENT- YOUTH CONFLICT”—
THERAPEUTIC STRATEGIES
Garrison Penobscot is a 15- year- old who was kicked out of his parents’ home when they
found out he is gay. Mr. and Mrs. Penobscot view homosexuality as a sin. Mr. Penobscot
serves as deacon in the Conflictia Presbyterian Church, so Garrison’s revelation that he is
gay was particularly challenging for Mr. Penobscot. Garrison is living with an older male
friend. Child Protective Services (CPS) intervened when Garrison’s teacher reported
he was not attending school and his parents were not taking responsibility for him. CPS
referred the case to Maxine to mediate a resolution that safeguards Garrison’s physical, psy-
chological, and social well- being. For this role- play, Maxine will meet jointly with Garrison,
Mr. Penobscott, and Mrs. Penobscott. Maxine should select two or three strategies from
one of the four therapeutic models described in this chapter (e.g., presuppositional questions
and strategic questions from family systems; or looking for exceptions and the miracle question
from SFT). During the role- play, the mediator should try to incorporate these strategies as
part of the mediation process. For further information on coming- out conflicts and media-
tion with lesbian, gay, bisexual, and transgender (LGBT) clients, see Etengoff and Daiute
(2013) or Moscatti (2015).
Debriefing : What exactly did the mediator say to incorporate the specific therapeutic strate-
gies? What was the effect of using these strategies on the ability of the parties to deal with their
conflict? To be effective as a mediator, what type of information did Maxine need to know about
the child protection system?
MAJOR ASSIGNMENTS
Choose one of the following two cases for your major assignment. The first case involves
a conflict between siblings over their recently deceased parents’ estate. The second case
involves a conflict over child custody and access in a divorce situation.

Family Mediation and a Therapeutic Approach 381
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Assignment 8A: Messy Estate Dispute (The MED Case)
The three roles to choose from are Suzie, Selma, and Mona. Mona will play the media-
tor. If any of the role- play participants is male, he could be Sheldon, Simon, or Malcolm.
Suzie (age 38) and Selma (age 41) are siblings. Their parents died 5 months ago, leav-
ing them shocked, angry, and saddened. The sisters have not gotten along very well for
years, dating back to their envy and competitiveness in high school days. However, they
somehow managed to act “good” in front of their parents. Relations have soured further
given their reaction to the loss of their parents and the present task of how to divide
their parents’ estate. Neither parent had a valid will. Selma and Suzie are the only chil-
dren, and (now that Selma has paid the parents’ bills) no other parties are making claims
in the estate.
The main assets include a joint bank account with $25,000; life insurance and pension
benefits worth $50,000; a condominium (purchased 5 years ago for $280,000 with an out-
standing mortgage of $190,000; present market value unknown); Mom’s diamond engage-
ment ring; two wedding rings; a gold bracelet; Grandma’s brooch (low monetary value, but
sentimental to both); six photograph albums; a china set (serves 12); furniture (bedroom/
living room/ dining room); 150,000 frequent flyer miles; and a 2011 Mazda (which neither
daughter wants because of car repair needs). Mortgage and maintenance fees on the condo
total about $2,500 per month. Selma is the more financially secure of the two women and
has threatened to take Suzie to court (mostly out of spite). Suzie works part- time and rents
an apartment; she would like to move into the condo to save money. Besides, the market
value is currently depressed because of the recession in Conflictia. Suzie believes it would
be best to wait before selling. Selma thinks that Suzie is already living in the condo and that
she has started to sell various pieces of furniture.
Both Selma and Suzie have independent legal advice; the lawyers referred them to
mediation to try to work out a memorandum of understanding. If and when the issues are
resolved, the lawyers will draft the final agreement. Selma and Suzie have agreed to try to
work things out with Mona, a family mediator recommended by one of Selma’s friends.
Suzie’s Confidential Facts
Suzie is not sure she can trust Mona, the mediator. Mona seemed to know Selma from
before. Suzie is worried that Mona and Selma are good friends. Suzie does not want to
make any accusations, because her lawyer said she should try to make a good impression
with the mediator. Suzie has trouble understanding the “Agreement to Mediate” form that
her lawyer gave her.
Suzie is not very knowledgeable about real estate values or investments. Her parents
used to help her budget and told her what to do with her money. Suzie was quite depen-
dent on them, emotionally as well as for concrete support and advice. When she found
out her parents were killed in a car crash, she was devastated. Suzie is not living in her par-
ents’ condo. She has mixed emotions about doing so. On the one hand, she could save rent
money. On the other hand, she would be living with a constant reminder of her parents and
their recent tragedy.
Suzie can be accommodating, but she becomes very competitive when backed into
a corner. She might even start to decompensate or regress into childish name- calling if
she feels threatened. Suzie may be willing to compromise on certain monetary items in
her parents’ estate, but if there’s one thing that she wants— whether through litigation
or through mediation or whatever— it’s Grandma’s brooch. Grandma promised it to
her when she was 12. Suzie wants to be treated fairly but has trouble articulating what
fairness means.

382 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
382
Selma’s Confidential Facts
Selma is the older, wiser, and stronger sibling. She has mixed emotions about dividing her
parents’ estate. On the one hand, her parents always told her to take care of Suzie; on the
other hand, she hated that. Moreover, Selma is still in shock about her parents’ sudden
death in a car accident. She was supposed to meet them earlier that day. She still feels guilt-
ridden for backing out at the last minute.
Selma may approach mediation in a “tit- for- tat” manner, willing to trade off one item
for another. However, if Suzie rubs her the wrong way, Selma will shoot back. There are
some items that Selma must have: the entire china set, the diamond engagement ring, the
frequent flyer miles, and Grandma’s brooch (which she promised Selma when she was
14). She does not think that Suzie should get anything of value, since she is not good with
money. Selma believes Suzie is likely to lose any investments and sell family heirlooms to
pay for her day- to- day needs. She spoke to the superintendent at her parents’ condo. He
thought that Suzie had already emptied out most of the furniture.
Selma wants to get things settled in one session. She is quite willing to go to court. She
is only mediating because her lawyer strongly suggested it. She has difficulty maintaining
attention for long periods. She may get up once in a while to wander around. Selma has
never participated in mediation before. She finds that Mona can sometimes be “too nice.”
Mona’s Confidential Facts (Mediator)
The only case facts that you have are the common facts identified at the beginning of this
section. You may want to meet with another person in your class who is role- playing the
mediator, to help you prepare and plan your approach to mediation. Also, review the phases
of mediation from the introduction to Module III. Brainstorm issues that you might expect
the parties to raise. Identify theories and strategies that will help you deal with them.
Assignment 8B: Separation Anxiety Case
The three roles for this case are Hartley, Willow, and Malala (the mediator). Hartley (age
38) and Willow (age 40) have been living together as common law husband and wife
for 14 years. Willow is employed as an elementary school teacher, earning $58,000 per
year. Hartley works as an electrician. He earns $87,000 per year. They have an 8- year- old
daughter, Destinee, and a 14- year- old son, Stefan. Although they had a relatively happy
life together, Willow has been feeling a gap in her life. She recently started to reconnect
with her religious roots by attending services at the local temple of the Church of Jesus
Christ of Latter- day Saints.15 Hartley was born and raised as an atheist. Although Willow
was born into the Mormon faith, she left the community as a young adult when she went to
teaching college and met Hartley. Now that she is returning to her faith, she wants Hartley
and the children to follow in her tradition. Hartley decided it was time to separate when
Willow started talking about “getting married and raising our children in a proper religious
home.” Neither parent has an attorney. They opted for mediation because they wanted to
settle matters without going to court. Still, their relations are quite acrimonious. Willow has
hinted that Hartley is emotionally abusive. Hartley refers to Willow as “that flakey wing-
nut.” Willow has been trying to keep the children away from Hartley, fearing that he is a bad
influence and may try to alienate the children from her. They have sought the services of
Malala, a mediator with the Conflictia Family Mediation Center. They have asked Malala to
assist with child custody, visitation, and child support. They say they can work out spousal
15 The group could agree to provide Willow with a different faith background.

Family Mediation and a Therapeutic Approach 383
383
support and division or property on their own. Willow plans to relocate to Springfield, 450
miles away, so she can pursue a graduate degree in special education. The children have
been living with Willow. Hartley insists that the children need to stay him if Willow moves
away. The following confidential facts are for the parents and mediator. If the group wants
to include children in the mediation process, then they will need to develop additional facts
for Destinee and Stefan (for information on family laws and issues in relocation cases, see
P. Parkinson & Cashmore, 2015).
Willow’s Confidential Facts
Willow feels very confused and anxious. Although she feels a strong pull toward her
Mormon faith, she also feels her movement toward this faith is tearing the family apart.
She has sought help from elders from her community and well as from her parents. They
tell her to follow her heart, but her heart is in two different places, with her family and with
her religion. Willow does not see a way to reconcile these parts of her life. Although she
feels very uncertain about what to do, she does not share her uncertainty with Hartley. She
feels that she needs to show him that she is strong, certain, and confident. Willow feels hurt
when Hartley disrespects her religious beliefs. She sometimes lashes back by calling him
“godless” and speaking in condescending tones about his hedonistic lifestyle.
Willow understands that her children benefit from a close relationship with both par-
ents. She does not want to separate them from their father, at least their old father who
was compassionate, caring, and compromising. Now, she sees Hartley as distant, angry, and
rigid. Willow’s main reason for wanting to go to Springfield is to advance her education and
help her gain a better paying job. She also sees this as an opportunity to start life anew and
gain some distance from Hartley. Willow says that it is not good for the children to see their
parents fight, so it is better for the parents to live in different places. Willow’s parents live
near Springfield, so that also provides Willow and the children with a source of support.
Willow is very anxious about the mediation process. She knows that the welfare of her
beloved children depends on reaching a good outcome in mediation. Willow sees Destinee
as a fragile flower who needs lots of nurturing and protection. Destinee was born prema-
turely and has always been prone to getting sick. Willow sees Stefan as a bear: big, bold,
and tough. Stefan has always excelled in sports and has been very independent. Willow
believes that Springfield is a much better environment for both children, having smaller
schools, fewer criminal elements, and a strong Mormon community. Willow believes that
she should have sole legal custody of the children, as well as primary residence. She says
the children can spend one weekend per month with Hartley, as well as 2 weeks of sum-
mer vacation. Because Hartley is atheist, he does not need to see the children for religious
holidays. However, he should be able to see the children around their birthdays and Father’s
Day. As part of any agreement, Willow insists that Hartley is not allowed to have any unre-
lated women sleep over at his house while the children are there. Willow wants the children
to start respecting the institution of marriage.
In terms of child support, Willow wants Hartley to pay what is required under the state’s
child support guidelines. She also wants him to pay an additional $9,000 per year for a sum-
mer camp that is offered through her church.
Hartley’s Confidential Facts
Hartley thinks Willow has had an emotional breakdown and is searching for some sort of
comfort in religion. He speculates that she feels guilty about leaving her religion and that
she wants to make things up to her parents before they pass on. Hartley believes that Willow
may have a depressive disorder and could benefit from mental health counseling. He is con-
cerned that she is making poor decisions, including wanting to move to Springfield. Hartley

384 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s
384
realizes that if the case went to court, the court would likely award custody to Willow. Still,
if the case were headed to court, he would insist on a full custody evaluation, including a
mental health diagnosis for Willow. Hartley has been very anxious since the separation. He
has had trouble sleeping and difficulty focusing at work. His parents separated when he was
12 and he hates the thought of putting his children through a similar separation process.
Given his parent’s high- conflict divorce, he decided that he never wanted to marry.
Hartley sees Willow as an overprotective mother. Although Destinee was born pre-
maturely and has had some medical risks as a result, Willow has turned Destinee into a
hypochondriac. “Willow is constantly taking Destinee to the doctor for one fake illness
or another.” Hartley sees himself as serving a stabilizing role in the children’s life. He is
scared that both children will suffer if they have to live full time with Willow in another
city. Hartley has talked to both children about where they want to live when their mom
moves to Springfield. Both say they want to live with him. They do not want to leave their
friends, their schools, or their father. Stefan loves sports and has great, lifelong friends on
his lacrosse and rugby teams. Hartley also has a very close bond with Destinee, both shar-
ing a love of art and building things with their hands. Hartley believes that the children
should live primarily with him, but he is willing to have joint legal custody. He says the
children “must be raised atheist until they are 18,” as that is what the Hartley and Willow
agreed when they started living together. Hartley does not want Willow interfering with
his life, telling him what religion to follow, messing up the kids, or compromising his time
with them. He hints that he is willing to forgo child support if Willow allows the children to
live with him. Hartley says he would permit Willow to see the children anytime she comes
to the city, but that they could only go to Springfield for special holidays and 2 weeks of
summer vacation. Hartley does not think that he should be responsible for schlepping the
children back and forth to Springfield. “The children need stability. Of the two parents, I’m
certainly the stable one!”
Although Hartley is not intentionally trying to alienate the children from their mother,
he often tells them negative stories about her. He makes fun of her faith, he questions her
ability to make decisions, and he warns the children not to spend too much time with her
or they will be “infected by her strange and curious ways.”
Malala’s Confidential Facts
In preparation for mediation, identify one model of mediation that you want to practice
(e.g., therapeutic, transformative). Given this model, how you will define whether media-
tion is a success? Identify specific mediation phases and strategies that you want to focus
on. Decide what premediation processes may be helpful in assessing and preparing the cli-
ents for mediation. You may also want to familiarize yourself with your state’s laws pertain-
ing to custody, visitation, and child support. One of the main conflicts concerns where the
children are going to live, particularly since Willow is planning to relocate. Consider every-
one’s underlying interests and creative ways in which you may be able to help the parties
resolve these interests.

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