The Gazette 1986

APRIL 1986

GAZETTE

Mediation — Professional and Practice Issues

by Maura Wall-Murphy*

T his Paper attempts to deal with mediation from a practitioner's point of view. It shows how in marital breakdown, the shift from offering assessment of children in a Child and Family Centre, to offering mediation for their parents can have far-reaching effects on the future relationships in the family. This paper is based on the experience of working with 40 couples referred for Mediation to the Child and Family Centre in Dublin. The term "mediation" refers to a form of negotiation in which a couple who has decided to separate, attempts with the aid of a Mediator to reach an agreement on those issues pertaining to the separation. When couples are in difficulties with their marriage in Ireland they tend to opt for one or more of the following: ignore the problem, and pray that it will go away; blame their partner, and consult a solicitor; blame themselves, and seek medical or counselling help or seek assessment for their children. The last option is preferable to some as it is more acceptable to have a problem child than a problem marriage. Marital breakdown and separation in Ireland tends to be seen in either moralistic or pathological terms and the solutions, despite our utterances on the sanctity of marriage and the family, often appear to be anti-family. Marital breakdown is not a sudden decision but a point on a continuum. Rarely are the partners at the same point in their decision to separate or in their willingness to reach an agreement. The first task for the "mediator" is to establish whether or not this couple really wants to separate. Some couples request separation mediation but the hidden agenda is really wanting their partners to work at the marriage, or stop drinking or "come to their senses". Mediation is not appropriate for these couples and they are given the option of receiving counselling or family therapy, or, if they do not wish to avail of these services, the option of doing nothing. Of the couples who requested mediation in 1984, 74% reached a settlement on all issues relating to separation; 13% were referred for marital counselling; 13% decided to do nothing. The Process The model of mediation used here is an adaptation of that used by the American Academy of Family Mediators founded in the U.S.A. in the 1979's. It is adapted to meet the specific needs of the Irish situation. Before entering mediation the couple is asked to sign a contract agreeing to abide by the "Rules" of mediation. This contract includes a statement of the principles underlying mediation, e.g. that couples take responsibility for working out their own separation agreement; that all discussions are confidential; that the mediator does not take sides or testify in court on behalf

of either party. All issues relevant to separation are negotiated; these include joint parenting, living arrangements, family home, financial support and assets of the marriage. A full and frank disclosure must be made of all financial and other relevant information to ensure that participants make fair decisions based on sufficient information. It is advisable for each party to seek outside consultation on the long-term tax and legal consequences of different proposals and to take back to their respective solicitors the memorandum of agreement reached in mediation if they wish it to have legal effect. In the event of a breakdown on the agreement or of any change in circumstances affecting the agreement the parties may return to re-negotiate the issues in question. In the event of no agreement being reached and the couple decide to go to court, the only information the mediator can give the court or any other professional is that no agreement was reached. Either party or the mediator has the right to withdraw from mediation ai any time. It is important to explain to couples that mediation differs from arbitration, counselling and therapy and that it is not a form of assessment or supervision of the couple or their children. The mediator's task is to promote the balanced interests of the whole family. This often comes as a surprise to the couple as the expecta- tion is that they will be seen in some way as inadequate or unfit parents and the their children will be emotionally scarred for life. Research has shown that it is not the separation event that is the central factor determing the outcome for the children but rather it is the "separation process or chain of events set in motion by the separation, that determines the outcome". (Wallerstein & Kelly, 1976)'. This is also borne out by Walszak and Burns, 1984: "A child's future is not determined at any stage. Harmful or potentially harmful experiences do not have a lasting influence if subsequently compensated for by good experiences" 2 . In order to use mediation both parties must be willing to mediate and have the ability to use negotiation skills. Of the couples seen for mediation in 1984, 56% of referrals were initiated by the legal profession, 30% by the couples themselves and 14% by G.P.s. Most couples could be described as "high conflict" couples, i.e. reluctant to sit in the same room for the initial session. Some couples were willing to separate but unwilling to accept one of the outcomes of separation such as being on their own, or being part-time parents or having to manage on less money. When working on the areas of budgeting, child management, identifying assets, consulting with experts, or telling the children, the mediator acts as an educator and information-giver, helping the couple to identify their resources and to use

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