Jan 12, 2018 in Research

International Crisis Mediation

A mediator is directly involved in the divorce process, represented couple in court or in private practice,  to assist the divorcing couple to settle their many disputes and to reach solutions during the divorce process (Stahl, 2010). In many states the mediation process is confidential, which prevents the mediator from participating in the adversarial court process. In this case, Stahl (2010) says that the mediator should exercise high levels of confidentiality to enable both the mediator and the couple to work more effectively in trying to resolve conflict without fear that things, said during mediation, can be used against the other person in litigation.

The State of California has a unique family court system in which mediation may not be confidential and may result in a recommendation for custody and access plan. Stahl (2010) says that the mediation should focus on the custody disputes and the mediator will try to use his/her knowledge and negotiation skills to assist the couple in coming up with their own parenting plan. The goal of the mediation in this case is to assist the couple in developing their own parenting plan for the children, without any recommendation from the mediator.

Because the couple could not reach an agreement, local court rules allowed the mediator to provide information regarding the family dynamics, so that the mediator can make an order regarding the custodial arrangement. This is because the mediator  had prior contact with the parents; he/she is not an appropriate resource for evaluating the family (Stahl, 2010). The mediator should decline any referral to be the court-appointed child custody evaluator. The mediator is also likely to be a collateral witness for the child evaluator, unless confidentiality precludes such involvement by the mediator.       

Domestic Violence Issues

Some states have enacted a statutory presumption against awarding either sole or joint legal or physical custody to a perpetrator of domestic violence. Folberg, Milne & Salem (2004) says that the approach to mediation must follow the principles set forth in the Rule of Court and statutes. The case involves domestic violence, child custody, and degree of self determination, mediator neutrality, child, victim, safety and divorce issues. In the six issues surrounding this case, if four of them are settled by agreement, mediators will be required to write out the agreement on the four issues either as a parenting plan that is attached to the court order, or written as a stipulation on a court order form (Folberg, Milne & Salem, 2004). 

This case should employ the use of both recommending mediation model. The mediator may recommend further action to the Court, as described in the statutes and the Rule of Court. Folberg, Milne & Salem (2004) says that the mediator might recommend that the Court appoint an attorney for two children or that a child custody evaluation should be conducted.  

Physical Custody of the Daughters

It is important to balance the needs of the child, wishes and needs of the parents and the Law. The Court should place responsibility upon the mediator to resolve the conflict between children and intentions of the parents (Hecker, 2012). Physical custody is the right to have children to live with either of the parents. In this case every parent has an obligation to support his or her children. Ihara, Warner & Hertz (2008) noted that when one parent has physical custody and the other has visitation rights, the parent with visitation rights is usually ordered to pay some child support to the other parent, who is usually deemed to meet his or her obligations through the custody itself.

The mediator should advice the couple to use joint legal custody, which means that parents plan jointly their 5- and 11-year-old daughters’ future, as they did before planning the divorce. Ihara, Warner & Hertz (2008) says that joint physical custody is ideal for this situation because it is typically worked out by parents, taking into consideration things like parents’ and children’s schedules and desires, the quality of schools, relationships with friends and so on. In many states the mediator may award joint legal custody at the same time, one parent is named as the primary caretaker of the child and one house is the primary home for the child.

By balancing the power and decision making, both parents are more likely to provide financial support for their children and maintain close relationship with them. Ihara, Warner & Hertz (2008) says that in all states, child custody is decided according to the best interests of children. Mediators, in this case, must consider all evidence before deciding who will provide the better home (Ihara, Warner & Hertz, 2008). The mediator should favor the parent, who will best maintain stability for the 5- and 11-year-old daughters. The way each parent lives will be an important factor when the conflict resolution management decides custody issues. Mediators should further consider each couple’s lifestyle to be more in the best interest of the child than the others (Ihara, Warner & Hertz, 2008). 

When acting as a mediator in the case mentioned in this case, the mediator will be responsible for the couple or family as a whole. Ihara, Warner & Hertz (2008) says that the mediator’s goal is to help the couple to develop their own plans for the children. In this case the mediator will include confidentiality in their contracts, so that the couple will be able to talk freely in mediation without fear that their comments will be used against them in later litigation. 

Ethical and Legal Issues Involved in the Case

Divorce mediation is an alternative, non-adversarial means of conflict management by which a couple, with the assistance of a mediator, negotiate settlement of their custody. Mediation is recommended or mandatory in all states for child custody and visitation disputes before litigation can be commenced. Hecker (2012) says that the mediator has an ethical obligation to ascertain whether mediation is appropriate, whether it is safe, whether parties should be brought together in the same room and who ought to be at the table.

In the case of these couples’ the most important ethical considerations is confidentiality. Hecker (2012) says that confidentiality should be discussed with the mediator’s written disclosure or in the explanation of the process. Whether a mediator allows a friend or stepparent to be present is at the discretion of the mediator. Another important ethical and legal consideration is that of non-coercion, or with the right of the client to self-determination (Hecker, 2012). It is important to educate clients and allow them to make their own choices, free from pressure from the mediator.

Mediator bias is also a significant issue that can get it in the way of a fair and ethical mediation. Hecker (2012) argues that mediators who find themselves unable to be neutral or bias free must excuse themselves from the case and make necessary referrals. The mediator should be conscious with the information about couples, who have had violence in their relationship, as coercion or intimidation may be present but never overtly stated. Caucus can be used to ensure that these problems do not interfere with the process (Hecker, 2012).

Mediators have cultural and ethical commitments and therefore, no mediator should take part in a mediation process that is likely to lead a morally, legally or ethically unconscionable result. This means that mediators in this case must disclose their own relevant cultural, legal, personal and ethical commitments that will clearly affect how they facilitate the mediation process.          

State, Federal or International Laws

Every state has mediation as an alternative dispute resolution (ADR). Hecker (2012) says many states allow the ADR rules, the American Bar Association Section of Dispute Resolution, and the Academy of Family Mediators to set the guidelines for ethical mediation practices. Some states, such as Florida and California, have Mediator Ethics Advisory Committees to set and ensure the ethical and moral standards to which the mediator complies (Hecker, 2012). Federal Laws require a mediator to be licensed professional, have at least a Master’s degree, and be trained in family issues and conflict management. 

Court-based ADR programs are generally available in the federal district and appellate courts. Poon (2010) noted that Section 4 of the ADR Act provides that “each district court shall require that litigants in all coil cases consider the use of an alternative dispute resolution process at an appropriate stage in the litigation” (p. 32) Poon (2010) also says that “the Act further states that any district court that  elects to require the use of alternative dispute resolution in certain cases may do so only with respect to mediation, early neutral evaluation and if the parties consent, arbitration” (p. 32)

Principles Relevant to the Case

There are two types of mediation, which can be used in this case. These include both the recommending and confidential models of mediation. Folberg, Milne & Salem (2004) says that the majority of mediation programs provide recommending mediation, but nearly half of the mediations, conducted in states such as California, are in courts that use confidential models of mediation. In confidential model the mediator makes no recommendation as to the preferred outcome of any unresolved issues either verbally or in writing (Folberg, Milne & Salem, 2004).The mediator may recommend a brief assessment, an investigation, an evaluation or the appointment of an attorney for the two girls if the circumstances warrant.

The recommending model is ideal for this case. The mediator should carry out a dual role of mediator and evaluator. The couple will be told about this dual role in written materials, again in the orientation sessions and again by the mediator at the beginning of the session (Folberg, Milne & Salem, 2004). If the negotiation reaches an impasse, the mediator informs the couple of his or her shift in role. Coltri (2010) established that the mediator must collect information on the case, beyond the content of the mediation session itself, by examining court record and the couple’s declarations.         

How the Principle Mediation Model Affects the Case

The use of the recommending principle entails that the mediators tructure their recommendation process by following the Laws, regulating child custody investigations and evaluations and the Rule of Court for partial child custody evaluations. Parker & Evans (2007) noted that the recommending principle reflects five generally accepted underlying goals of ADR. The principle will ensure that outcomes are not coerced and the couples are given a fair chance to make their own choices. The use of the recommending principle ascertains that there is a democratic participation of the parties involved. The couple will be given a fair opportunity to participate in their own dispute resolution. Parker & Evans (2007) noted that the mediation through recommending principle ensures responsive and particularized solutions to divorce disputes and child custody cases, which do no worse harm to the parties involved.

These principles reflect the ideal of ADR as an equitable process, where people communicate freely, understand each other, settle differences and, perhaps, even change their behavior rather than have a judgment, imposed on them in the alien, adversarial setting of the Court (Parker & Evans, 2007). The principles ensure that neutrality and impartiality of the mediator towards the couple is exercised. ADR practitioners through the mediation standards and principles are able to demonstrate independence and lack of personal interest in the outcome, so that they approach the subject matter of the dispute with an open mind, free of preconceptions or predispositions towards either of the parties (Parker & Evans, 2007).  

The Case Plan, Resources and Approach to be Taken

The first step in the case plan involves collecting bio-psychosocial data that includes the couples perception of current legal situation, educational level, medical (physical and emotional), criminal and employment history; past and present substance use and abuse. Sperry (2004) says that it is important to capture family constellation, support systems and religious or spiritual orientation. The second step in the case plan is to review collateral data, such as divorce agreement, court orders, school records and mediation agreements (Sperry, 2004). This information is essential for the 5- and 11-year-old daughters. Third step involves interviewing the whole family and individual members. Administer selected testing tools, interprets the results and then identifies recommendations and interventions. Feedback should be provided to the couple or family as appropriate.

The initial interview and collection of bio-psychosocial data for the couple seeks to understand the reason for the interview. It also unveils divorce details, custody and visitation privileges. Sperry (2004) noted that the first step is essential in determining the husband’s working history, wife’s job relocation requirements and domestic violence history. The case plan will determine the physical custody requirements of their two daughters because their present attachment to home and school.

The couple will be administered the Parent-Child Relationship Inventory (PCRI) and the State-Trait Anger Expression Inventory (STAXI). They are supposed to complete in full the instruments within the time guidelines. Sperry (2004) says that on the PCRI the couple’s strengths, satisfaction and discomforts allow their daughters the autonomy appropriate on their ages. The STAXI will indicate the scores of feelings and beliefs about being treated fairly or unfairly while expressing or not expressing anger in the marriage life (Sperry, 2004). 

The initial interview and collection of bio-psychosocial data for two daughters will indicate the level of sadness over their parents divorce. Sperry (2004) noted that aspects of school attendance, performance, grades will be captured in the case plan. Two daughters will be under control of the Parental Nurturance Scale (PNS) and Parental Bonding Instrument (PBI). Two instruments will indicate how children feel about their parent’s nurturance and acceptance from their father and mother.  The scores will indicate the level of feelings of nurturance and acceptance by both of their parents (Coltri, 2010). 

While carrying out the case plan, the fee for mediators will vary depending on the experience, training and reputation of the mediator. In this case the mediator may charge $50 to 150$ per hour or more. If, for example, the mediator will write up the settlement memorandum instead of the actual divorce agreement, the fee will be included in per session fee or it may be a separate charge. For this particular case, in person meetings with the mediator and the couple will be the most effective way to reach a settlement.        

Professional Tools Required

Parent Child Relationship Inventory (PCRI) is required to determine the couple’s strengths, satisfaction in parenting and level of support, they offer while parenting. Sperry (2004) noted that the State Trait Anger Expression Inventory (STAXI) will be used to determine emotional feeling of the husband and the wife towards parenting. Both instruments indicate discipline, limit setting and punishment orientation attitude towards the children (Sperry, 2004).  Parental Nurturance Scale (PNS) is used to measure parental approval, acceptance and affirmation of children from the perspective of child. Parental Bonding Instrument (PBI) is another important tool, which will be used to measure the level of nurturance and acceptance; two daughters receive from their parents. It also measures parent-child relationships as perceived by the children (Sperry, 2004). The Relationship Conflict Inventory (RCI) is essential because for couple’s seeking divorce, it evaluates their relationship, conflict and measures progress and outcomes of relationship therapy (Sperry, 2004). 

In conclusion, the mediation process in this case should be approached carefully, because the divorce case involves children, who are dependent on their parents. In such a case the conflict, to be resolved, has concern division property and physical children custody. These matters are mainly conflicts of interests that can usually be addressed by negotiation and mediation. The couple should not perceive divorce and determination of physical child custody as the end of a family, because their relationship as parents will remain. 

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