froyd & cain, 2014

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Toward a Humanistic Approach to ChildCustody Mediation: A Delicate BalanceDonald “Rick” Froyd Jr. a & David J. Cain ba University of Phoenix, Central Valley Campus , Fresno , Californiab Alliant University , San Diego , CaliforniaPublished online: 14 Mar 2014.

To cite this article: Donald “Rick” Froyd Jr. & David J. Cain (2014) Toward a Humanistic Approachto Child Custody Mediation: A Delicate Balance, Journal of Child Custody, 11:1, 41-60, DOI:10.1080/15379418.2014.892803

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Toward a Humanistic Approach to ChildCustody Mediation: A Delicate Balance

DONALD ‘‘RICK’’ FROYD JR.University of Phoenix, Central Valley Campus, Fresno, California

DAVID J. CAINAlliant University, San Diego, California

In this article, the authors briefly describe the origins of divorcemediation and review several recognized models of practice. Wehighlight the lack of a universally accepted model of mediationin the scientific literature and how this creates confusion for prac-tical application of these models for use in various contexts, suchas the private sector or government setting. The importance ofpractitioners employing the use of a clearly articulated model ofmediation based upon a coherent theoretical underpinning ispresented. The model proposes that the context of the mediationshould prescribe the model of mediation used. A humanisticphenomenological model of mediation is presented for use in at-court mediation milieus.

KEYWORDS humanism, phenomenology, person centered, divorcemediation, family court, child custody, forensic psychology,domestic relations

THE GENESIS OF CHILD CUSTODY MEDIATION

Milne, Folberg, and Salem (2004) provided an overview of the beginnings ofdivorce and family mediation. They traced the roots of court-connectedmediation to California since that state was the first to mandate all divorcecases with child custody disagreements to attend mediation prior to any courthearing. Emery and Wyer (1987) pointed out that forms of mediation can betraced to early Greek and Chinese cultures and the United States has used

Address correspondence to Donald ‘‘Rick’’ Froyd Jr., Ph.D., Lead Faculty Area Chair,University of Phoenix, 45 East River Park Place West, Suite 101, Mail Stop: CR-K101, Fresno,CA 93720. E-mail: [email protected]

Journal of Child Custody, 11:41–60, 2014Copyright # Taylor & Francis Group, LLCISSN: 1537-9418 print=1537-940X onlineDOI: 10.1080/15379418.2014.892803

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some form of mediation since 1647. Milne and her colleagues reported that38 states had implemented mandated mediation. Milne et al. avoided offeringa definitive statement or definition of mediation. Rather, they took care todescribe what mediation is not. They stated mediation is not arbitration,negotiation, nor therapy (Milne et al.). Milne et al. described the complexityof assisting divorcing intimate partners with family and property ties. Theyalso highlighted how the evolution of the family acted as a catalyst for themediation process to produce many varied models to keep up with the chan-ging family structures (e.g., domestic partners, same gender relationships,no-fault divorce, and so on).

In this article, we discuss the following: (a) established models ofmediation; (b) mediation and the types of practice settings; (c) the impor-tance of a theoretical model for mediation; (d) the idea that the context ofthe mediation should identify the model of mediation used; and (e) how ahumanistic, person centered approach is an optimal choice as an approachto court-connected, or court-mandated mediation.

MODELS OF MEDIATION

The field of divorce mediation has evolved since the beginning of the non-adversarial legal services offered by some attorneys in the early 1970s (Milneet al., 2004). Consequently, the different styles of practice and theoreticalmodels have evolved as well. Milne and her colleagues pointed out that thesemodels or styles of practice were not specific to any particular venue. In fact,they also expressed that each style of practice or model has a different focus,goal(s), and possibly different outcomes. In their work, those authors ident-ified five models of practice for mediation: (a) facilitative; (b) evaluative; (c)transformative; (d) a therapeutic model for high conflict; and (e) hybridmodels.

Milne and her colleagues (2004) identified those five models and notedthat this emergence of models ‘‘marks the maturing nature of familymediation practice’’ (Folberg, 2003, as cited in Milne et al., p. 14). Yet, theywere also careful to note that some leaders in the field believed that it wasnecessary to ‘‘achieve greater clarity regarding the variety of dispute resol-ution processes and the boundaries that distinguish them’’ (Peace as citedin Milne et al., p. 14). We seek to add to the clarification process suggestedby Peace (as cited in Milne et al.) with this manuscript.

Facilitative Model

Mayer (2004) described the facilitative model of mediation as a processoriented approach with an interventionist or passive mediator. The mediatorfocuses mainly on assisting the parties to communicate in an effective

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manner to reach resolution. Mayer opined that most facilitative mediators didnot come to be facilitative mediators by studying the method of facilitation.Rather, he suggested that most facilitative mediators appreciated their ownway of conducting mediation and chose that title to distinguish their stylefrom others. He stated facilitative mediation was a statement of values andgoals as opposed to a ‘‘thoroughly formulated approach to mediation’’(p. 29).

Mayer (2004) suggested that there were two types of facilitative media-tors: (a) deal makers and (b) orchestrators. Mayer stated that he believed thiscategorization eventually lead to the division between evaluative and facili-tative mediation styles. The orchestrator most closely describes the processused by facilitative mediators. Mayer wrote, ‘‘The orchestrating mediator sup-plies the process that allows these voices to come together in an effective andharmonious way’’ (p. 30). The facilitative mediator does not attempt to per-suade parties to accept an agreement. Mayer suggests that facilitativemediation consists of the following four elements: (a) process oriented; (b)client centered; (c) communication focused; and (d) interest based.

Mayer (2004) suggested that it is difficult for many mediators to remainexclusively facilitative since some clients require education and problemsolving assistance during the mediation session. As well, he discusses the fineline between providing information, giving advice, and making recommen-dations. Mayer also pointed out other criticisms regarding facilitative media-tion from domestic violence victims that felt disempowered by the neutralityof the mediator during the process. An imbalance of power exists betweenthe perpetrator of intimate partner violence (IPV) and the victim. As well,some court processes revictimize the victim (Froyd, 2011). Another key criti-cism regarding facilitative mediation is that some mediators claiming to beusing a facilitative style are more focused on ‘‘achieving an outcome thanon empowering the clients’’ (Mayer, p. 50).

Transformative Model

Bush and Pope (2004) suggested that clients seeking assistance in mediationare looking for something different from mediation than what the other mod-els provide. Those authors suggested that clients are ‘‘clearly looking for abetter alternative to ‘doing it themselves’ or having lawyers (and perhaps ajudge) do it for them. They want to feel more in control of themselves andthe process’’ (p. 54). Bush and Pope offered that people are trying to findmeaning regarding the conflict and learn ways to interact with people with-out conflict. As the clients acquire the ability to interact conflict-free, they feela sense of accomplishment and a feeling of pride regarding this achievement.

Bush and Pope (2004) described the transformative mediation model asan approach designed to change the downward spiral of conflict that resultsin demoralization and disempowerment into a more constructive way in

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which to conduct the negotiations. Essentially, the process changes the nat-ure of interaction during conflict. They outlined that the mediator does thisby helping the parties to make a ‘‘positive interactional shift . . . by supportingthe exercise of their capacities for strength and responsiveness through delib-eration, perspective taking, communication, and decision making’’ (p. 59).

Evaluative Model

Lowry (2004) defines evaluative mediation as a process that ‘‘either allows or,in many cases, establishes an expectation that the mediator will make assess-ments about the conflict as well as its resolution and communicate thoseassessments to the parties’’ (p. 73). Riskin (as cited in Lowry) articulated threeactivities in evaluation: (a) assessing strengths and weaknesses of a case; (b)developing and proposing options; and (c) predicting the outcome at a trial ifno agreement is reached. Key differences between this model and the facil-itative model are that the facilitative mediator does not discuss the substanceof the case or communicate the merits of a case to the clients, the evaluativemediator does provide this information to the client. The evaluative modeldiffers from the transformative model in that the mediator using the evalua-tive model is not necessarily interested in the parties change or transform-ation; rather, the evaluator is more interested in the resolution of thepresenting issue.

Lowry (2004) described the evaluative model by providing informationon the controversy surrounding such a model, as well as the benefits anddangers of mediators providing evaluations or recommendations to benchofficers after conducting a mediation session. Lowry lists eight dangers ofevaluative mediation with the primary being that the litigants are swayedby the charisma or power of the mediator. The benefits of the evaluativemodel include the increased possibility for the session to produce anagreement.

Therapeutic Model

Pruett and Johnston (2004) described a therapeutic model of mediation forhigh conflict coparents. They stated their model of mediation includes havingthe litigants engage in individual therapy prior to attempting mediation andthen engage in weekly mediation sessions complete with crisis telephonecalls between sessions if needed. Their model could take some clients severalmonths to reach success.

Hybrid Model

Lastly, Shienvold (2004) discussed the attempts to mix and match elements ofdifferent models into hybrid processes. In his discussion of mediation and


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negotiations, Shienvold highlighted the differences between purists andeclectics. He articulated a continuum for the entire alternate dispute resol-ution format that moved from simple negotiation, to facilitation, neutralevaluation, and ultimately arbitration depending on the circumstances out-lined at the beginning. Shienvold suggested that there were many differentpoints during the process that called for different skills from the neutral party.The neutral party would apply the different skills at appropriate times duringthe negotiations. For example, the neutral party would initially begin facilitat-ing communications, moving to assisting with problems solving, and thenmoving to an evaluation if necessary, at which time the process is no longera mediation but has moved to an evaluation. A criticism of this type of hybridmodel is that it becomes confusing to the clients, and, unless the mediator ishighly skilled with a rich depth of experience in all of these models, themediator may likely become confused during the process as well.

Ultimately, these models, with the exception of the therapeutic model(Pruett & Johnston, 2004), lack adequate empirical support indicating onemodel to be more effective than the other model. Beck and Sales (2000;2001b) discussed their opinion that models of mediation should have morespecific theoretical explication to facilitate a more programmatic way inwhich to conduct mediation, as well as assist with conducting more focusedresearch.

MEDIATION AND TYPES OF PRACTICE SETTINGS

Dissolving intimate partnerships oftentimes requires legal assistance in orderto address things of value to both of the parents and the children. In the1970s, early practitioners believed it important to address the emotional-psychological aspects of divorce to facilitate post divorce adjustment (Milneet al., 2004). A historical perspective of family court litigation reveals thatthere is a trend in which parents are choosing to represent themselves inthe family court venue as opposed to incurring the expense of an attorneyfor representation (Milne et al.). Terminating a marriage or an intimate part-nership can be expensive when using the traditional attorney representedformat in the legal setting. Thus, professionals from many different specia-lized career fields created divorce mediation as an alternative to addressthe psycho-emotional aspects of divorce and to assist in creating parentingplans that are in the best interests of the children.

The primary benefit of this form of conflict resolution is that it signifi-cantly reduces the overall cost of legally terminating an intimate partnershipwith regard to separation of property and developing parenting plans asopposed to individual legal representation (Beck & Sales, 2001a). Baileyand McCarty (2009) suggested that mediation provides an additional benefitin that the coparents feel more empowered by providing their input to the


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issues in mediation as opposed to their issues being resolved in an adver-sarial proceeding vis-a-vis an impersonal legal ruling.

Professionals from the fields of mental health, law enforcement (e.g.,probation officers), judicial officers, and attorneys comprise the majority ofpresent-day professionals performing mediation services for separating inti-mate partners (Milne et al.). Notably, due in large part to the broad spectrumof professionals performing divorce mediation, there is a wide variety of‘‘models of mediation’’ as well (Folberg, Milne, & Salem, 2004). Likewise,there are different milieus in which divorce mediation can take place.

Private Mediation

Oftentimes, private mediators are attorneys, retired judicial officers, or othertypes of alternate dispute resolution professionals who perform a variety ofservices in a private setting (Milne et al., 2004). Using private mediation,the former intimate partners can negotiate the separation of property,division of retirements, as well as visitation and comprehensive parentingplans in a more relaxed atmosphere. As well, there is a movement for privatemediators to practice collaborative law in which the practice involves profes-sionals from the mental health field and different areas of law (family law,business law, and so on) to assist with the complex issues surrounding thetermination of an intimate partnership (Collaborative Practice, n.d.).Conversely, self-represented clients have a choice of using court-connectedmediation if their family court is so equipped (Milne et al.).

Court-Connected Mediation

Mental health professionals with an educational focus who are trained in familystudies and child development make up the majority of court-connectedmediators. As such, these professionals do not typically assist with negotiationsin the division of property, such as selling or keeping the house, vehicles, andfurniture (Milne et al., 2004). Rather, court-connected mediators limit the scopeof their practice to assisting separating or divorcing coparents to determining theprimary and non-custodial parent of the children and developing acomprehensive parenting plan (Milne et al.) designed to provide a healthyliving setting for the entire family in terms of the best interests of the child (Emery&Wyer, 1987; Emery, Laumann-Billings, Waldron, Sbarra, & Dillon, 2001). How-ever, a newer tendency in court-connected mediation finds the court directingthe mediators to provide parenting plan recommendations to the court if theparents do not reach a stipulated agreement in the same mediation session. Infact, California legislators recently changed the name of court-connected‘‘mediators’’ to ‘‘child custody recommending counselors’’ presumably to reflectthe emphasis on mediator parentingplan recommendations in the process of‘‘at-court’’ mediation (California Courts, n.d.).


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Distinguishing Between At-Court, Court-Connected, and PrivateMediation

There is an important distinction between ‘‘at-court’’ mediation, court-connected mediation, and private mediation. Many courts provide ‘‘at-court’’mediation sessions that are specifically designed to accelerate the litigationprocess in terms of requiring fewer appearances by the litigants at-court. The ‘‘at-court’’ model allows the litigants to proceed rapidly throughthe court processes and reduces the cost of their litigation. Additionally,‘‘at-court’’ mediation sessions increase the number of cases processed bythe court. Many courts use ‘‘at-court’’ mediation in an effort to deal effectivelywith the rising number of litigants and the dwindling budget allowances instate courts, especially California courts (Froyd & Robbins, 2011). The privatemediation and court-connected mediation milieus are oftentimes able toprovide several hours at one time, or several sessions over a period of weeksfor the coparents to reach an agreement that they believe would be accept-able to both. The reason more dissolving intimate partners do not chooseprivate mediation or other types of mediation milieus is that they are gener-ally more time consuming and significantly more expensive than the‘‘at-court’’ mediation model.

AT-COURT MEDIATION AND THE HYBRID MODEL

Milne et al. (2004) described how the need for courts to be informed by thedata produced from a mediation session prior to a court hearing caused thecreation of a hybrid model of mediation that (a) allowed a meaningfulnegotiation process to take place between the coparents regarding the par-enting plan and (b) produced an evaluative recommendation to the courtshould the parents not reach a stipulated agreement. The benefits of thisprocess are that the parents are provided the opportunity to sit with a pro-fessional mediator and respectfully work out a mutually agreed upon parent-ing plan that meets the unique needs of the particular family. Whencoparents do not reach an agreement, the mediator analyzes the data createdfrom the session and makes a recommendation. The mediator then sends theanalysis and subsequent parenting plan recommendation directly to thejudicial officer hearing the case to assist with making an informed parentingplan order.

A PRECARIOUS TRANSMUTATION

This blending of models presents a dilemma in that one enduring principle oraspiration of a mediator is neutrality and fairness (Milne et al., 2004; Taylor,1997). Another difficulty is that when the mediator immediately ‘‘shifts’’ roles


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from mediator (oftentimes immediately in the session) to acting as a custodyevaluator, that mediator must offer a parenting plan recommendation to thebench officer based upon his or her impressions from the mediation session.In a discussion of neutrality versus impartiality, Beck and Sales (2000) stated,‘‘because neutrality may exist as an ideal, and not in practice, pro se litigantsmay be influenced by a mediator in ways counter to their best interests andcounter to their own beliefs about what is a reasonable agreement. It may bethat the agreement reached suits the attitude and values of the mediator andnot the clients’’ (p. 1013). Beck and Sales (2000) do not provide a definitionof terms with regard to the meaning of pro se litigants; however, the contextof their discussion centered on coparents who were not represented by legalcounsel. Beck and Sales (2000) described the frustrations of self-representedlitigants when attempting to address issues such as child support calculation,health insurance issues, and the coparent responsible for providing thatinsurance for the children.

The concern for the self-represented litigant was that in the mediationsession, one coparent might have agreed to reduce the requested time withthe child(ren) at the behest of the persuasive or influential mediator, whosegoal it was to produce an agreement. The coparent’s reduction of time withthe child(ren) would then increase that member’s child support payments.Conversely, the coparent represented by an attorney would have been edu-cated regarding these important considerations prior to the mediation ses-sion. Such assistance from an attorney prior to the session would havegiven the vulnerable coparent the ability to resist the mediator’s influencebased on the coaching from their attorney.

An Ethical Dilemma

Among practitioners and researchers there is a negative or troubling issueassociated with this attempt at a hybrid mediation process (Lowry, 2004).The immediate, in-session shifting of the mediator from one role to anotherblurs the boundaries of the scope of practice for the mediator with respect tothe presenting problem. This shifting of roles then moves the practice ofmediation from a democratic process to an authoritarian procedure. Theposition of power shifts to the mediator, and this makes him more of anarbitrator than a mediator.

Fundamentally, the role of the mediator is to assist the coparents withnegotiating a comprehensive child custody visitation and parenting planusing a democratic process. However, the hybrid process causes themediator to become a ‘‘child custody evaluator’’ offering analyses and recom-mendations regarding the parenting plan in a similar fashion as a child cus-tody evaluator. In most states, a child custody evaluation is a separate anddistinct function performed by a psychologist or other qualified mentalhealth professional with the purpose of evaluating the family dynamics


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and recommending a child custody visitation and parenting plan. Therefore,we recommend that the mediator inform the coparents about the likelihoodof the court accepting the recommendations of the mediator.

Various problems with child custody evaluation processes (Emery, Otto,& O’Donohue, 2005) served as a catalyst for the American PsychologicalAssociation (APA, 2010) to provide a useful set of guidelines to assist withclarifying the role of the child custody evaluator. The APA Guidelines directlyaddress a wide range of ethical issues such as: (a) evaluator bias; (b) scope ofevaluation; and (c) multiple relationships, as well as other practical ethicalissues (APA, 2010). The Association of Family and Conciliation Courts(AFCC) also developed a Model Standards of Practice for Child CustodyEvaluation (AFCC, 2006). Unfortunately, mediators using the hybrid modelof mediation do not have the carefully thought out guidelines such as thoseproduced by the APA and AFCC to explicate the need for the clarification ofthe mediator role.

Role Confusion=Multiple Relationships

As previously noted, the APA (2010) provided ethical guidance and princi-ples for child custody evaluators that suggested important and thoughtfulguidelines for the scientific approach to performing child custody evalua-tions. Guideline I (7) recommends that psychologists refrain from multiplerelationships with persons they are evaluating. Technically, acting as amediator and then ‘‘shifting’’ to acting as a child custody evaluator seemsto violate this guideline. Lowry (2004) lists role confusion of the mediatoras one of the criticisms of the evaluative model of mediation. The spirit ofthe APA guideline seems to be that all members of the custody evaluationmust be unequivocally clear on the exact nature of the evaluation. If a personenters into a mediation session with the intent to be honest and open, theymay reveal information in that session that they may have chosen to leave outin the different milieu of a child custody evaluation (Beck & Sales, 2001a).

The Possibility of Mediator and Family Court Professional Bias

Taylor (1997) provided a critique of the construct of neutrality in themediation session. She discussed the idea of neutrality in the context ofthe model of mediation in the process of negotiations. Mediator reactionsto client affect, content, and presentation in the mediation session are animportant consideration requiring constant awareness and self-evaluationby the mediator. Similarly, Beck and Sales (2000) reviewed research foundin the social psychology literature in the context of how mediators mightbe influenced by their own thoughts, attitudes, beliefs, and values. Theirreview of the research literature suggested it was ‘‘exceedingly unlikelythat a mediator will be able to monitor internal and automatic cognitive


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processing of information so that personal attitudes will not affect their judg-ment and behavior’’ (Beck & Sales, 2000, p. 1003).

After considering the constructs of neutrality and impartiality as beingideal as opposed to the achievable, data from previous research seem tounderscore the importance of the mediator using a specific, clearly articu-lated theoretical orientation in an effort to minimize bias and effectivelyengage in ethical values management while performing child custodymediation. We address such problems by offering a humanistic person cen-tered model of mediation that espouses the kinds of values and democraticprocesses that honor and respects human beings.

A NEED FOR A PROGRAMMATIC MODEL OF MEDIATION

Throughout the literature regarding mediation, specific goals or measures ofsuccess are not clearly articulated (Ballard et al., 2011). After reviewingrelevant literature, it appears that judicial officers and court administrationprofessionals created child custody=divorce mediation to address a need toassist family court judicial officers with processing a significantly increasingcaseload (Emery & Wyer, 1987; Milne et al., 2004). As such, those profes-sionals chose to employ the use of a form of mediation pragmatically withoutclearly articulating an overarching theoretical foundation upon which to basethe methodology. While this was a remarkable and innovative strategy 30years ago, changing demands on the court judicial officers combined withincreasingly complex family dynamics such as intimate partner violence(Froyd, 2011; Froyd & Robbins, 2011) reinforce the call by scholars studyingmediation for a more programmatic model (Beck & Sales, 2001b). We believethat parenting plans crafted in mediation using a humanistic, person centeredand democratic approach will likely result in coparents trusting these pro-cesses more due to the respectfulness of the approach and the ‘‘win-win’’outcomes.

THE CONTEXT OF MEDIATION

As stated earlier, the context of the mediation session should drive the inter-ventions. As such, a clearly articulated epistemological underpinning shouldbe the source or fountain from which to draw the interventions (Johnson,1987). The context of court-mandated mediation compels participants toattend child custody mediation in many states (Milne et al., 2004). Therefore,to balance the power of the state with a compassion for human beings wesuggest a humanistic, person centered approach as having the type of respectfor human dignity necessary for this delicate balance. Cain (2002) describedthe humanistic view of the person as self-actualizing, resourceful, resilient,self-aware, and capable of making healthy choices. For court-mandated


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mediation, the humanistic view of the person as self-aware and free tochoose seems congruent with the freedoms provided by the U.S. Consti-tution. This orientation also provides the beginnings of a decision tree for‘‘at-court’’ mediation. The client is self-aware and free to choose.

Coparents compelled by the court to engage in mediation to determinean appropriate parenting plan for their separating family would benefit frombeing empowered to decide upon the plan for themselves. Researchers dis-cussing mediation (e.g., Ballard et al., 2011) confirm our anecdotal experi-ence that the majority of coparents using at-court mediation have limitedfinancial means and are generally considered to be experiencing a higherdegree of conflicted coparent communication. These coparents tend to lacka sophisticated or informed legal strategic plan or parenting strategy in thecontext of divorce and separation. Coparents such as these may be done adisservice by a system that attempts to make a ‘‘one size fits all’’ approachwork for every family.

A CALL FOR A FOCUSED APPROACH

Frederick (2008) has suggested that the declining resources and increasingcase filings for family courts present certain challenges for processingmediation cases. However, we suggest the need for efficiency in the formof a ‘‘whatever approach works’’ should not preclude an ethical andinformed practice based upon a coherent theoretical model based in soundstandards of practice. One scholar and mental health practitioner (Johnson,1987) articulated a distinction between an eclectic approach to mental healthpractice as opposed to an integrative approach. Johnson argued that onedanger in using an eclectic approach could result in a hodge-podge of inter-ventions. In contrast, an integrative approach employs interventions basedupon a specific and cohesive epistemological underpinning. We believe itis time to match or tailor mediation models to the context of mediation.We suggest that the goals of the mediation session, plus the context of themediation, should determine the model of mediation used. We agree thatJohnson’s articulation of an integrative approach would work for our pur-poses in that a particular model of mediation used for ‘‘at-court’’ mediationsessions should be an integration of interventions based upon a specifictheoretical model.

Many coparents are caught in the downward spiral of the conflict thatleads to self absorption, mistrust of the other, and poor self-esteem (Bush& Pope, 2004). The humanistic person centered mediator must create aprocess that is democratic and fair in order to begin the movement towardrestoring some semblance of trust between the coparents. Focusing on awin-win scenario (Covey, 2004) allows each coparent to begin expressingtheir needs as well as listening to the other’s needs. This begins the


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collaborative engagement necessary for achieving the win-win solution inwhich neither coparent feels as if they ‘‘gave in’’ or ‘‘lost’’. The mediator willexpress the goal of the mediation session as a win-win outcome and explainthat there might be ‘‘no deal yet phases’’ which can take more time; however,the long-term outcome and compliance will likely be high.

Introducing Humanistic Values in Mediation

An important value for our proposed model of child custody mediation is thepreference for humanistic mediators to embrace many different worldviewsand respect diversity in a person’s beliefs and values (Cain, 2002). As such,mediators using our proposed humanistic model are less inclined to view cli-ents in the mediation session through the lens of the disease model of theAmerican Psychiatric Association’s Diagnostic and Statistical Manual ofMental Disorders, 5th Edition (DSM 5; American Psychiatric Association,2013). We believe that coparents should be viewed as experts on what worksfor them. Additionally, the focus in the mediation session should be on thebest interests of the child with regard to providing healthy environmentsand rich, meaningful relationships with the coparents and other family mem-bers. In this view, the mediator is ‘‘couple-centered’’ while the coparents are‘‘child centered.’’ Warring coparents can be helped to be more constructivewhen the child’s best interests are kept in view as the highest priority.

There is a tendency for mediators with training in counseling and psy-chology to view any type of behaviors from a client that deviate from whatthey view as ‘‘normal’’ through the lens of psychological dysfunction or men-tal illness. A mediator who views clients as having a mental disorder is vul-nerable to bringing this bias into the negotiating process. For example,during client staffings at treatment centers it is not uncommon to hear thera-pists complain about their ‘‘resistant’’ or disturbed clients. A humanistic thera-pist would likely not make such a statement since they believe clients havethe right to make their own choices and are capable of self growth. Further,the humanistic mediator believes the coparents are capable of making soundchoices that work for them and which ensure that their children’s needs arein the forefront of the process. The mediator strives for a process that iscooperative as opposed to adversarial.

Additionally, in mediation circles it is not uncommon to hear mediatorsrefer to their clients as ‘‘highly conflicted.’’ Once this label is in place, themediator oftentimes attempts to understand the dynamics through the lensof psychopathology. The lens of psychopathology is then further narrowedto a prescribed model of treatment as a metric for healthy versus unhealthythoughts, feelings, and behaviors. One could then argue that only thehealthy person, such as a doctor or mental health professional, can deter-mine if the patient is capable of making sound decisions. The confound ofinserting the disease model constructs into our humanistic mediation model


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then compromises the humanistic values of client freedom to choose and clientresiliency. This also ignores each parent’s desire to do what is in the best inter-ests of the child. Parents will disagree; however, the shared goal of what is bestfor the child gives the coparents incentive to rise above their ongoing discord.

We suggest the proposed model of mediation embrace the phenomeno-logical influence of humanism and the person centered approach. Rogersdescribed the core conditions of the person centered approach as beingempathy, genuineness, acceptance as well as an attitude that promotes freechoice (as described in Cain, 2002). Rogers articulated the value of receivingthe client openly, without preconceptions or biases and with unconditionalpositive regard. We believe that this non-judgmental attitude facilitates trustin the helper, in this case the mediator, and enhances the relational encoun-ter in the mediation session.

A PROPOSED THEORETICAL ORIENTATION FOR MEDIATION:HUMANISTIC AND PERSON CENTERED

Cain (2002) provided an overview of the origins, development, and efficacyof humanistic psychotherapies. Especially relevant for this discussion onmediation, Cain expressed the following regarding therapists espousinghumanistic values:

A fundamental value of humanistic therapists is their belief that peoplehave the right, desire, and ability to determine what is best for them andhow they will achieve it. Embedded in humanistic therapies is acommitment to democratic principles in negotiating differences and solv-ing problems when people are in conflict. Humanistic therapists are,therefore, strongly inclined to engage in behaviors that are collaborativeand provide optimal freedom for their clients. Conversely, they aredisinclined to use methods that are directive, persuasive, or covert. (p. 5)

In a person centered framework for mediation, the mediator strives toprovide an optimal atmosphere for coparents to negotiate an agreement.The mediator endeavors to provide a relationship to coparents characterizedby: (a) an empathic understanding of each parent’s reality; (b) acceptance ofeach parent, as well as their differing perspectives; (c) integrity and fairnessin the negotiating process; and (d) the use of democratic processes in reach-ing a solution that is acceptable to both parents. The mediator attends to thelifeworld of the coparents as free of bias as possible. This attitude allows afresh and open acceptance of the coparents’ personhood and the expressionof their issues and differences. By acknowledging the experience of the cli-ents through empathic responding (Bolton 1986; Gordon, 2000) the clientfeels validated and understood. This empathic validation oftentimesencourages clients to work collaboratively with the mediator and the other


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parent. Lastly, giving equal weight to each person’s views enables parents tofeel that they are being treated fairly and respectfully, and helps eachbroaden the scope of their focus.

THE NO-LOSE PROBLEM SOLVING MODEL

The Lost Art – Listening

Covey (2004), Gordon (2000), and Bolton (1986) all came to the essentialunderstanding of the importance of certain elements of communicationbetween human beings that creates successful and respectful interaction.Bolton lamented that human beings had lost the ability to engage in richand meaningful communication that acknowledged feelings and intimacy;this loss results in creating distance and competition in the communicationprocess between people. He noted, rather cynically, that communication inthe United States takes place between speakers in which the first to take abreath loses the talking competition. These authors (Bolton, 1986; Covey,2004; Gordon, 2000) all addressed the importance of viewing the humanbeing in terms of a precious, sacred ‘‘being in a world’’ deserving to berespected and heard.

Roadblocks to Listening

Both Bolton (1986) and Gordon (2000) articulated specific roadblocks tocommunication that prevents closeness and understanding and increasesblame and distance between the communicators. People wishing to com-municate effectively must learn these roadblocks and avoid using them whencommunicating. These roadblocks are worth articulating since they are soessential to the discussion of person centered mediation. Gordon (2000) sta-ted the roadblocks to communication are as follows: ordering, directing,commanding, exhorting, moralizing, preaching, advising, giving suggestionsor solutions, judging, criticizing, disagreeing, blaming, praising, agreeing,name-calling, ridiculing, shaming, interpreting, analyzing, diagnosing,reassuring, sympathizing, consoling, supporting, probing, questioning, inter-rogating, withdrawing, distracting, humoring, and diverting.

Bolton (1986) provided a list of descriptors very similar to Gordon’s(2000) list. Bolton’s (1986) three broad categories provide a way to sort theindividual descriptors into groupings of like effect. For example, his categoryof judging includes descriptors such as, criticizing, diagnosing, and name-calling. Bolton’s (1986) list is provided below:

Judging: criticizing, name-calling, diagnosing, praising evaluativelySending Solutions: ordering, threatening, moralizing excessive=

inappropriate questioning, advising


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Avoiding the Other’s Concerns: diverting, logical argument, reassuring.(pp. 17–18)

One can see after a brief glance through these roadblocks how each canhave a distancing effect on others, or cause them to feel discounted, mis-understood, or that their views were minimized. For example, a person inthe depths of sadness may feel the need to simply cry and verbalize his orher grief to another person (e.g., a friend or helper). A listener lackingempathy and unaware of the adverse effects of these roadblocks to com-munication might say, ‘‘Oh, I know it hurts now, but, soon you’ll be justfine.’’ This use of the roadblocks ‘‘consoling’’ and ‘‘reassuring’’ is inappro-priate for this circumstance in that it does not validate the grieving person’sfeelings. Rather, those roadblocks used in that timing minimize the person’spain and leaves them feeling unheard. This is not to say consoling andreassuring do not have their place at other times in the communication pro-cess. The key is to communicate accurate empathy for the client’s benefit, asopposed to the person listening using those techniques because of their owndiscomfort with the distressed feelings of the other person.

Covey (2004), Gordon (2000), and Bolton (1986) all clearly stated thatthe primary task of effective communication is active listening. We suggestthat without knowledge and skill in such sensitive and compassionate listen-ing, the person attempting to help others will quite simply be an ineffectivehelper.

OWNING THE STATEMENT AND IMPROVING THE COMMUNICATION

Gordon (2000) suggested that unless people use active listening and includeI-statements in the conflict resolution process, they rarely experience suc-cess. We suggest that the person centered mediator can assist the parentswith (a) identifying the roadblocks to communication that the parents areusing and (b) learning to use language and techniques that promote under-standing and validation.

GORDON’S PROBLEM SOLVING STEPS

The person centered mediator acts as a facilitator, educator, and guide, usingthe very clearly articulated theory and principles of the humanistic philo-sophy described by Cain (2002). Gordon (2000) recommends that the‘‘no-lose’’ concept be clearly articulated to both parties in conflict. Theno-lose proposition also posits that democratic processes must govern thearrival to the resolution of the issue(s). The facilitator using the no-losemodel emphasizes the use of fairness, patience, and equal standing in theprocess and a commitment to solutions acceptable to both parties or there


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is no deal. In other words, no one loses because the only solutions acceptedare those that are agreed upon non-coercively by both parents. This takes thecontentiousness out of the process and makes the mediator’s role a facilita-tive role, as opposed to a role of convincing the parents regarding what they‘‘should do’’. In this model, both parents and children’s needs are considered.A major advantage of this approach is that parents are more likely to adhereto solutions they generate as opposed to solutions imposed upon them.Gordon (2000) identified six steps to the no-lose method of problem solving.These steps are described below:

Step 1: Identifying and Defining the Conflict in Terms of CompetingNeeds

Gordon (2000) pointed out in his model that oftentimes people will tend toarticulate competing solutions to their conflict as opposed to starting witheach person’s need. For example, a couple conflicted over child visitationmay fight over who gets the child on what days and propose unacceptablevisiting schedules to each other. In contrast, Gordon (2000) suggests thateach identify his or her needs (e.g., a certain amount of quality time withthe child). Framed this way, more varied and creative possibilities for solvingthe problem become evident. For that reason, the first step in Gordon’sno-lose approach is for each person to first identify a need.

Step 2: Brainstorming to Generate Possible Solutions

Parents in this stage must generate as many solutions to the problem aspossible. Gordon (2000) discourages the parents and facilitator from makingany type of evaluative statements about any of the proposed solutions at thisstage – even if a suggestion is identified by the mediator as a ‘‘good sugges-tion.’’ In this phase, all proposals are listed without evaluation, even thosethat may not seem viable to one of the parents to ensure that all possibilitiesare heard. In this stage, the facilitator writes down all proposals for laterevaluation.

Another valuable technique for newer parents having less experiencewith parenting plans is to assist parents with clarifying work schedules, dis-tance between homes, children’s schools, extracurricular activities, and howtransportation is factored into these activities. We often prompt parents toidentify any special needs for children, such as health issues, learning disabil-ities, and so on. Oftentimes the clarifying process triggers other importantfamily dynamics issues such as the relational dynamics between childrenand parents. In some families, one child might feel less comfortable beingaway from one parent for extended periods, especially if the child is aninfant. Conversely, the children might not experience any difficulty withswitching between parents, making more options and parenting plan


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variations possible. The facilitator should ensure that both parents contributeto the pool of possible solutions. Gordon recommends pressing for addi-tional solutions until it appears the parents cannot offer any more.

Step 3: Evaluating the Alternative Solutions

This stage entails the parents eliminating the suggestions that are unaccept-able to them no matter what the reason. The mediator should encouragethe parents to state their feelings with honesty. For example, ‘‘I would beunhappy with that particular plan,’’ or, ‘‘that just doesn’t feel as if it is fairto me.’’ This stage invites the parents to begin stating their feelings aboutthe suggestions with honesty. Coparents experiencing high conflict may takethe opportunity to begin making blaming or hurtful statements toward theother parent. This is the time for the person centered mediator to remindthe coparents of the importance of using the active listening skills learnedearlier in the session to facilitate respectful communication.

A useful technique we use at this point in the session is to have bothparents practice acknowledging empathically what the other parent feelsor wants. The mediator will suggest, ‘‘Can you articulate what you heardthe other coparent say?’’ Anecdotal experience in the mediation milieu(and couple’s counseling as well) reveals that a parent oftentimes will givean interpretation of what the other coparent said, as opposed to the intendedmeaning. The mediator highlights this crucial element in the listening=communication process at this point in the session in an effort to supportthe coparent unit. The mediator will often need to point out, ‘‘I heard some-thing different than you seemed to have heard, can you ask her to repeatwhat she just said to you?’’ The listening parent will frequently ‘‘get it’’ thatthe listening process is inhibited by the receiver formulating an argumentin their head before the sender is finished speaking. Simultaneously, as thelistening parent repeats back what the sending parent said, verbatim, andthen asks for confirmation if that is what they actually said, the sending par-ent feels validated in the process. The process is then continued so that eachparent experiences being listened to.

Step 4: Deciding on the Best Mutually Acceptable Solutions

The parents in this stage, if they have been honest and acting in good faith, willhave narrowed down the proposals or suggestions to just a few. Throughhonest, open, and democratic discourse Gordon (2000) suggests the best optionwill emerge from the discussion. At this point in the process, it is important thatthe coparents understand that the solution currently under consideration willlater be evaluated for its effectiveness once it has been implemented. The ideathat the plan can always change as needed provides a layer of safety andfreedom to try the solution and see how it works. In fact, we often encourage


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coparents to consider all stipulations as ‘‘works in progress’’ or ‘‘living docu-ments’’ that will need modification as a matter of course. The final suggestionfor this stage is to clarify and ensure each coparent’s responsibilities and commit-ments are met with understanding and agreement.

Step 5: Working Out Ways to Implement the Solution

In the context of a child custody mediation session, the mediator works withthe coparents collaboratively at this stage more so than in other stages. Themediator can keep a standardized agreement form on a computer in a wordprocessing program for use at this stage. The mediator will take the notesfrom the session and begin typing in the data on the agreement form for sig-nature by both parents. The computer data entry from the notes provides amethod whereby everyone in the session is focused on completing the agree-ment in a shared fashion. At this stage, the parents are generally engaged inan exchange of ideas to firm up the smaller details and require less activityfrom the mediator.

Step 6: Following Up to Evaluate How Well the Solutions AreWorking

On occasion, the solutions reached in child custody mediation by the copar-ents for the parenting plan may have looked better on paper and felt betterwhen suggested in the mediation session. Yet, the plan did not work forsome unforeseen reason. Accordingly, it is a good practice to set up a reviewof the plan at a reasonable time to evaluate the effectiveness of the parentingplan. We suggest the coparents review the plan in 60 days. The review alsosupports the reality that blended families are expected to change over time;therefore, the members of the coparent subsystem must adapt to change andcommit to continued engagement in cooperative and democratic negotia-tions to identify and implement solutions in the pursuit of familial harmony.If the plan is not working, the first question is whether the plan is beingimplemented as agreed. In the case that it is not, the mediator works to helpidentify and remove impediments to the plan. On the condition that the planstill proves to be ineffective, then the plan may need to be modified in areaswhere it is not satisfactory to both parents.

CONCLUDING THOUGHTS

We offered a humanistic person centered model of child custody mediationin the court-mandated context because humanistic values as articulated byCain (2002) included a mediator position that views the client as self-actualizing, resilient, self-aware, and capable of making choices that are in


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the best interests of the child. These values in the context of court-mandatedmediation provide a more appropriate balance between state power and theindividual liberty that is congruent with democratic principles.

There are limitations to using the humanistic model in a court-connected setting. Cases with domestic violence as a factor are not appro-priate for this model for many reasons; however, the primary rationale isintimate terrorists would use the freedom inherent in the model to bullyand intimidate the victim. Cases involving coparents with moderate to severepsychopathology require a different model that would incorporate individualtherapy along with mediation. Pruett and Johnston’s (2004) therapeuticmodel would be a better fit in these circumstances. Lastly, court budgetaryrestrictions that include staff reductions would preclude cases with ‘‘higherthan normal’’ conflict from using this model since those cases typicallyrequire longer session times and additional sessions due to their complexity.

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