Negotiating Custody with High Conflict Couples

by Lynda Munro, Anita Vestal

April 2007


Divorce litigation, especially when there is contested custody, is rarely a straightforward negotiation process. Issues of divorce and custody can be negotiated out of court when certain conditions are present to move the couple to resolution of the issues. Mediated settlements are increasingly popular with both divorcing spouses and the judicial system. However, couples who cannot communicate with one another, and who have engaged in behavior that is threatening, coercive, manipulative and deceptive are usually not in a position to negotiate a settlement with each other. This essay suggests a model that allows a couple to attempt to negotiate a custody agreement taking into consideration the needs of the children and spouses for safety, expediency and firmness in the decision-making process.

Characteristics of High Conflict Couples

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News Categories: Custody, Family, Mediation Practice, Recommended, Belacord - Children, Belacord - Conflict

8/26: Divorcing? What are the benefits of mediation versus litigation

Court battles can go on for months or even years, and can get very ‘ugly’. All sense of civility is usually lost, and lawyers battle it out, airing the couple’s dirty laundry to be judged in court. In some cases, the litigation route is the only option – and you may need to hire a lawyer to make sure your interests are protected. However, if at all possible, you should try to go the route of mediation. This is where both parties come to a mutual agreement through a trained negotiator experienced in divorce law. It is often much quicker and far less emotionally damaging than litigation. read

8/26: UK: Mediation Matters: Unlocking an understanding of mediation

Who says August is a quiet month? It’s not traditionally noted for major Government statements, but this month saw one of the most significant announcements affecting family law and mediation for some time. Justice Minister Simon Hughes pledged funding for a single free mediation session for both parties where just one of them qualifies for legal aid. read

8/26: Judicial race pits defense attorney against mediator

One of the judicial races that will be decided in Tuesday's primary election pits a criminal defense attorney with hundreds of hours of experience in front of the bench and an attorney who runs a mediation business and teaches introductory law courses. Robin Lemonidis and Brooke Deratany Goldfarb are in the running for Brevard-Seminole Circuit Judge Group 14. Whoever takes the most votes in Tuesday's primary wins the seat and will take over the criminal cases previously handled by Judge John Griesbaum, who is retiring. Both women are well known in the community, and the intense competition between them has been drawing increasing attention as the decision date nears.  read

8/26: Preparing for mediation

There are two key questions that parties preparing for mediation should ask themselves throughout their preparation for the mediation: First, how to remove obstacles to settlement: parties should do all they can to avoid the negotiation at the mediation being delayed, or failing, because there is an issue that could have been identified and addressed in advance that was not.  Second, what will the other side need to help them take a decision to resolve the dispute? It is easy in the flurry of activity before a mediation for each party to focus only on their own case and preparation, but a resolution will only be achieved with the agreement of the counterparty, so keep in mind your opponent at all times (even if you disagree as to the approach they appear to be taking). read

8/25: Protecting Self-Determination in Mediation

At one point in a mediation, the parties appear to be stuck. The mediator offers a suggestion on how to resolve the dispute. Shortly thereafter, the parties sign an agreement based on that suggestion. Has the mediator violated the ethical standards relating to self-determination? For many of you, this brief description captures a typical mediation, so the thought that this could be a violation of an ethical standard may seem preposterous. We believe that closer examination is required. read

8/22: Pre-nuptial Agreements Increasing In the UK

The demand for prenuptial practicalities is on the rise, with one London company reporting a 50% rise in people inquiring about pre-nups. This upsurge could have been partly prompted by the Law Commission’s suggestion that a pre-marriage agreement should form part of the marriage reform, and that pre-nups should be given the kind of legal weight which they’re afforded in Scotland. read

8/18: Couples should try out mediation

Today, I'd like to focus on a settlement approach that is currently receiving a lot of attention across the United States -- mediation. Mediation is a process in which a trained mediator tries to help opposing parties reach an agreement they can both live with. In Guam, the "father" of mediation is attorney Pat Wolff. When I think about Pat, I reflect back on the old saying: "One person can make a difference." read

8/17: DIY divorce: Britons pay 30% less to split

The cost of legal advice for divorcing couples has fallen 30% since 2006, according to research by one of Britain's biggest insurers. The rise of cheap DIY services, while limited, may have helped force down prices, the insurer suggested. However, legal experts said the removal of legal aid is likely to have contributed to the decline in the average cost, which has fallen from £1,818 to £1,280. Online do-it-yourself services advertise a “quickie” divorce for as little as £37. But couples must agree on how any assets will be split and how child care and other arrangements will be managed. While almost a third of couples said they tried to reach an amicable settlement to save on legal fees, the proportion that used on online service, while growing, is still very low at 4%. read

8/17: Column: Parent who spanks has empty parenting tool box

. . . My ex-husband and I share custody of our 4-year-old son. Part of the reason we divorced was because of the different ways we view raising a child. My ex-husband is much more strict and firm with our son. Despite a contentious divorce a year ago, we are usually able to agree upon the day-to-day aspects of our son’s life. My concern is that my son has come back to me saying that his father has spanked him hard. read

8/13: Pembroke Pines Mediator Suspended Over Conflicts

A Pembroke Pines mediator has been suspended for six months by the Florida Mediator Qualifications Board for not disclosing a conflict of interest in more than 100 mediations. Ronald Weeks also was punished for misrepresenting his qualifications, the board said in a disciplinary report. Weeks was hired by his sister-in-law, Karen Watson, the mediation coordinator at the Fort Lauderdale office of Phelan Hallinan, a Philadelphia-based law firm representing mortgage banks. Weeks was paid more than $30,000 over a one-month period for his services. Weeks violated state rules for certified and court-appointed mediators by mediating cases where he had a conflict of interest and failing to disclose that to participants, the board report states. Weeks admitted the charges. read

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Conflict between divorcing spouses can be productive or destructive. Productive communication may well result in problem resolution. However, tumultuous communication between two parents often escalates into anger and blame and tends to lead to even minor behavior by either partner as being perceived as extremely negative (Schlater & O’Leary, 1985). The interaction becomes self-perpetuating. Strong feelings of anger and fear are aroused. These negative emotions prevent the parents from calmly resolving their differences whether the differences pertain to economics or to custody and visitation. Once the cycle of communication becomes punctuated by anger and resentment, the conflict seems to take on a life of its’ own and the individuals involved seem unable to resume peaceful negotiations which would ultimately result in problem resolution. Overt power manipulations, threats, coercion, and deception usually characterize the communication interactions between “high conflict couples”. The goal of such conflict is to acheive power and control over the other parent or family members (APA, 1996).

Conflict between divorcing spouses can be productive or destructive. Productive communication may well result in problem resolution. However, tumultuous communication between two parents often escalates into anger and blame and tends to lead to even minor behavior by either partner as being perceived as extremely negative (Schlater & O’Leary, 1985). The interaction becomes self-perpetuating. Strong feelings of anger and fear are aroused. These negative emotions prevent the parents from calmly resolving their differences whether the differences pertain to economics or to custody and visitation. Once the cycle of communication becomes punctuated by anger and resentment, the conflict seems to take on a life of its’ own and the individuals involved seem unable to resume peaceful negotiations which would ultimately result in problem resolution. Overt power manipulations, threats, coercion, and deception usually characterize the communication interactions between “high conflict couples”. The goal of such conflict is to acheive power and control over the other parent or family members (APA, 1996).

Escalating conflict between the divorcing parents leaves both parents with feelings of misunderstanding, discord and destruction. (Hocker & Wilmot, 1995.)The destructive communication patterns of high conflict couples make them poor candidates for joint custody arrangements, or any loose arrangement that requires ongoing communication and cooperation to work. Joint custody normally requires a very high degree of parental cooperation. According to Mnookin & Kornhouser (1979), the ongoing contact between the parents “would create endless possibilities for antagonism between the parents, with predictably detrimental effects on the child’s well-being…. Joint custody may very well be much like carrying out Solomon’s threat to cut the child in half.” (p. 290)

When “high conflict couples” appear for mandatory court mediation to work out a custody dispute, the mediator needs to be alert for signs early on that will indicate the probability of success or failure if the traditional model of mediation is utilized. (By traditional mediation model, we mean one mediator working directly with the couple. The presence of attorneys for the parents is optional.) The mediator must continually evaluate in the early stages of mediation whether these parents are in mediation willingly or because they were mandated and whether the couple can or cannot communicate cooperatively.

There is an incongruence in the term mandatory mediation as mediation is by definition a process designed to be cooperative, interactive, and participatory (Vestal, 1999.) Pearson & Thoennes (1986) offer the following definition of mediation:

Mediation is a cooperative dispute resolution process in which a neutral (trained) third party tries to help contesting parties reach a settlement of their differences… mediation stresses honesty, informality, open and direct communication, expression of emotion, attention to the underlying causes of disputes, reinforcement of positive bonds and avoidance of blame. Its objective is to cause the disputing parties to compromise and thereby reach a voluntary and mutually acceptable agreement.

Parental Alienation

Parental alienation syndrome (PAS) is a complex manifestation of mental and emotional abuse resulting from conflicted parents fighting for custody (Vestal, 1999.) In PAS families, the aligned parent disparages the rejected parent by making accusations about the other parent in front of the children, describing him or her as dangerous or harmful, telling the child(ren) that the other parent doesn’t love them, and greatly exaggerating the other parent’s faults, whether real or imagined (Gardner, 1992.) The child(ren) become aware that the aligned parent wants them to hate the other parent, and joins in the denigration to please the parent they are aligned with, or to avoid abandonment or rejection by that parent. Such dynamics are very familiar to clinicians who work with families that are separated and divided (Seigel & Langford, 1998.)

Parents who engage in these alienating behaviors may do so because they are unable to cope with their personal hurt and disappointment about the failed marriage and lack a more mature grieving process. “It is likely that they cope with their hurt and anger by villainizing the ex-spouse and, perhaps unwittingly, by enlisting their children to help repair their damaged sense of self by having the children join in the splitting and projection of responsibility onto the other parent.” (Seigel & Langford, 1998.) In their study of MMPI-2 validity scales with 34 parents going through child custody evaluations, Seigel and Langford (1998) conclude that parents who engage in PAS see themselves as flawless, having no responsibility for the failed marriage compared to divorcing parents who did not engage in PAS who were better able to modulate their emotions and had less need to deny responsibility.

Johnston and Roseby (1997) offer a more sympathetic portrayal describing the aligned parent as one who feels rejected, sad and afraid of being alone as a result of an unwanted divorce. They argue that, "[as a consequence of an unwanted divorce] these vulnerable people can become acutely or chronically distressed… and turn to their children for nurturance and companionship, as allies against the world and salve for their wounded self-esteem" (Johnston and Roseby (1997, p.198). They may project all the blame onto the divorcing spouse and view him or her as an incompetent parent. They feel self-righteous and compelled to protect their children from the other parent. (Johnston & Roseby, 1997).

Often courts and family practitioners fail to recognize the signs of PAS early; often PAS is not recognized until the damage to the parents and to the children is extensive and perhaps irreparable. When this happens, the behaviors of the aligned parents and children are often allowed to continue, apparently reinforced by the court’s refusal to step in and put a stop to them. (Vestal, 1999.) The aligned parent understands that time is an ally in the campaign to turn the child(ren) against the other parent (Clawar & Rivlin, 1991.)

Cartwright (1993) states that while negotiation is often a good solution in other forms of litigation, it tends not to be effective in cases of PAS. Mediators must be attuned to the signs of PAS. They must understand the aligned parent’s attempts to stall the process while laying blame on the other parent; these tactics send a warning signal that this case needs an alternate process – one other than the traditional mediation model - in order to succeed in mediation.

Domestic Violence

Ryan (1995) acknowledges that despite growing societal awareness and laws designed to protect abuse victims, domestic violence continues to increase. Once believed to be an uncommon occurrence, it is now recognized as affecting many in society (O’Keefe, 1994). Domestic violence can include physical, sexual and psychological abuse or intimidation as well as economic coercion (Corcoran & Mclamed, 1996; Kempe, 1997).

It has been argued that mediation may not be appropriate for couples who have experienced domestic violence because it may place women and children at risk for ongoing intimidation (Hysjulien, et. al. 1994). The mediation process can and has allowed an abusive spouse to maintain control and domination with the sanction of the courts (Geffner & Pagelow, 1990). A number of states that now recognize the paradox of mediating in abusive relationship waive mandatory mediation where parties allege domestic violence or child abuse (Bruch, 1988 and Sun & Thomas, 1987 in Geffner & Pagelow, 1990). Mediation with abusive couples can only be accomplished successfully with the consent of both parties, with a mediator who is trained in both family violence and mediation techniques, and with the use of particular methods to balance the power differential and compensate for the advantage of the perpetrating spouse.

Geffner and Pagelow (1990) argue that joint custody and mediation both often work against the child(ren)’s best interests in abusive relationships. Joint custody should not be recommended when there is a history of abuse and intimidation because the power and control issues will be perpetuated. Joint custody in these situations tends to revictimize the abused spouses and their children and may actually perpetuate the intergenerational transmission of abuse in the children as they learn to identify with the aggressor. (Geffner & Pagelow, 1990.)

Determine the Appropriate Approach for Resolution

While we would agree that using the tradition model of mediation to negotiate custody in high conflict families might be fraught with challenges, there are many arguments in favor of attempting mediation in lieu of contentious litigation. Pearson and Thoennes (1986) contend that mediation will not transform hostile couples into cooperative ones and it will not eliminate future conflict, but it is perceived to be a less damaging intervention than court. Murray (1999) agrees that children of high conflict divorce may benefit from being spared the potentially harmful effects of the adversarial approach. Lund (1995) believes that it is important to lower the overt conflict in PAS cases so that the children are not drawn into the parents' conflicts. A mediator may be successful in helping inflexible custodial parents respond to changes in visitation schedules and other situations that require cooperative interaction between the parents (Lund, 1995, p.315).

Mediator Training and Qualifications

Mediators who attempt to negotiate resolution to custody disputes with the kinds of high conflict families that we describe here must be highly skilled and thoroughly trained. They need training in several areas including:

  • Custody evaluation issues
  • Family (domestic) violence
  • Parental alienation
  • Child abuse and emotional trauma of children
  • Power and gender issues in mediation
  • The dangers of joint custody in high conflict families
  • Mediation in a multidisciplinary team approach

When we refer to a “trained mediator”, we expect that the individual has acquired expertise in the content areas listed above as well as mediation process skills. Mediators with sufficient knowledge and expertise in these areas will be more likely to understand the dynamics and limitations of high conflict families. They will be more likely to understand the limitations of the mediation process and will be prepared to shift to an alternative process if necessary to ensure the expedient resolution of the custody dispute. This will provide for a safer and more secure process as well as leading to outcomes that will not be quickly unraveled by a controlling parent.

Step One: Pre-mediation screening

One of the major strategies for protecting domestic violence cases from the limitations of mediation is to use a pre-mediation screening process. Pre-mediation screening is highly recommended by many practitioners in the field to determine which cases can be mediated and which cases are not suitable for mediation (Girdner, 1990; Perry, 1994; Chance & Gerencser, 1996; Pearson, 1997; Salem & Milne, 1995; Thoennes, Salem & Pearson, 1994). Questions should be developed or adapted from models that are already field-tested. An experienced mediator who is trained in the areas noted above would conduct the inquiry. The mediator may use a questionnaire or interview format, with sufficient time built in for the mediator to explore the responses given. As a precaution and for the sake of safety, the screening should be done individually rather than in a joint session of the couple. The screening process will look for signs of PAS and family violence patterns.

The purpose of the pre-mediation screening is twofold. First, to determine if mediation is a safe forum and secondly to ascertain if both parents are receptive to mediation and capable of good faith negotiation. When parents voluntarily seek mediation, they are likely to be sincere in their desire to reach an agreement. On the other hand, high conflict couples who are referred to mediation by the court system may not be good candidates for the traditional model of mediation, according to Gold (1984.) She says, “… enmeshed couples are described as having the poorest outcome, because strong forces of attachment run counter to the mediators’ goal of resolution” (Gold, 1984, p.45.)

One parent may be reasonable and hopeful that mediation could resolve the conflict in a satisfactory manner for all concerned. Unfortunately, mediation is a process that requires both parents to communicate openly and honestly toward agreement. Turkat (1994) points out that attempts at mediation can be sabotaged by one uncooperative or unreasonable parent. “The parent who utters the words of cooperation and then violates those words by actions outside of the mediation room frustrates the process” (Turkat, 1994, p. 741.)

The divorce mediation process is different from therapy where the goal may be to improve family functioning. Mediation can be a parallel process to family therapy, but not a substitute process. “Mediation is a goal focused, task-oriented, time-limited process, which strives for a specific end product – a negotiated settlement – and if this end product cannot be obtained, the mediation terminates” (Kelly, 1983, p. 35.) If either parent is not receptive or is deemed to be a poor candidate for mediation, we recommend that the couple be referred to court for appointment of an Attorney Ad Litem, and a mental health professional or family evaluator. (The roles of these individuals are discussed later.) However, if all are receptive and capable, proceed to step two of the mediation process.

Step Two: First Mediation Session

During the first mediation session the mediator attempts to resolve concerns around issues that are identified by both parents. If there are issues of control and intimidation, mediators need to be alert to signs of family violence. If there are issues of difficulties around visitation and reluctance on the part of the children to visit the non-custodial parent, PAS may be indicated. Perhaps the aligned parent doesn't want to share and doesn't really want to support a loving relationship between the child and the other parent. Mediators can look for signs that the parents are not able to give up control or put the child’s needs before their own. Aligned parents usually have well-articulated reasons why they sincerely believe that the rejected parent is a poor parent. Their reasons supporting the children’s failure to visit often appear to be very reasonable (Vestal, 1999.)

The following are examples of denigrating remarks that mediators should look for:

  • He never feeds her. She's always hungry when she comes home from visits.
  • She has a red bottom. I don't think he changes her diaper frequently.
  • My child doesn't want to visit.
  • I can't make her talk on the phone to her mom.
  • These visits interfere with other social/sporting events.
  • It isn't good for the baby to be away from me overnight.
  • He wasn't involved with the kids at home so I don't think he really wants to take care of them now. He just wants to hurt me.
  • My child shouldn't have to associate with her new boyfriend.
  • My child is always upset after visits; crying, talking back.
  • See, the visits aren't good for him. He needs more time to adjust.

These remarks and indicators should alert the trained mediator to the possibility of parental alienation. However, the presence of one or two remarks such as those listed above certainly would not certify the existence of PAS. Other factors need to be present, such as those outlined by Gardner (1992) shown in Table 1 on the following page.

Table 1 Common Characteristics of Children with Parental Alienation Syndrome

PAS Trait Description of Behavior
A campaign of denigration The child is obsessed with "hatred" of a parent. This denigration by the child often has the quality of a litany
Weak, frivolous, or absurd rationalizations for the deprecation The child provides irrational and often ludicrous justifications for not wanting to be near the hated parent
Lack of ambivalence All human relationships, including parent-child relationships, are ambivalent. In PAS the children have no mixed feelings. The hated parent is all bad and the loved parent is all good.
The "independent thinker" phenomenon Many children proudly state that their decision to reject the other parent is completely their own; they deny any contribution by the custodial parent.
Reflexive support of the loved parent in parental conflict Commonly the children will accept as 100 percent valid the allegations of the loved parent against the hated one, even after seeing evidence that the loved parent was lying.
Absence of guilt The child shows total disregard for the hated parent's feelings.
The presence of borrowed scenarios There is a rehearsed quality to the scenarios and they often use language or phrases that are not commonly used by the child.
Spread of the animosity to the extended family of the hated parent The child rejects the network of relatives that previously provided numerous and important psychological gratifications.

When the mediator notices a pattern of behaviors and statements that suggest the presence of parental alienation and/or domestic violence, or if there is an impasse, the mediation should be postponed to prepare for a new process to augment the mediation. The mediator can advise the parents that additional professionals need to be involved in the negotiations in order to assure an outcome that meets everyone’s needs.

Attorneys for the parents are required to be advocates for their clients. In cases of high conflict divorce, the relationships between parents and children may be so fragile that there is risk of irreparable injury. What the client wants, and what is best in the long run for the child’s healthy development may not be compatible. Saposnek (1998) argues that minimizing adversarial efforts and maximizing mediation efforts can go a long way to reducing the destructive effects of divorce on the children. However, with contemporary litigious attitudes prevailing, someone needs to represent the long-term interests of the children. We concur with the recommendation of Palmer (1988) that an Attorney Ad Litem be appointed to represent the child (ren). The role of an Attorney Ad Litem (AAL) is a bit different from the role of the Guardian Ad Litem, who can be, but is not required to be, an attorney as well.

Appointing an Attorney Ad Litem Prior to the Second Mediation Session

If the parents agree to allow additional professionals to be part of the negotiated custody and/or visitation arrangements, the mediator can request to confer with the mental health professional or family evaluator. This can be accomplished by telephone to reduce the time and expense of personal appearances. The mediator’s goal is to explore his or her concerns related to alienation, abuse and/or violence. If there is concurrence by the other professionals involved in the case, an Attorney Ad Litem should be appointed by the court to represent the interests of the children.

If the parents do not agree to allow additional professionals to have input into the negotiations, the mediator would recommend to the parties’ respective attorneys that the court be petitioned to appoint an AAL to protect the interests of the child(ren). This is done with the knowledge of the parents. In other words, the mediator first attempts to gain acceptance of the idea by both parents. If they do not both agree, the mediator should recognize the potentially dangerous situation for the children and express this concern to the attorneys representing the parents. The court’s response should be the appointment of an AAL. At this point, the custody case may or may not continue in mediation.

An Attorney Ad Litem (AAL) should be appointed in any case in which the mediator suspects PAS or family violence. We recommend that when an AAL is appointed in any case of high conflict custody dispute he or she needs to be trained and competent in the same areas as those listed for mediators. The AAL obtains the necessary information about the case from the Family Evaluator and counsel for each parent. Obviously, the mediator will not be in a position to disclose information to the AAL that was obtained in a mediation session without the informed consent of both parties. However, once the AAL is appointed, he/she is invited to future mediation sessions .

Once the AAL is appointed, his or her role should be immediately clarified to the parents. Both parents will need to meet individually with the AAL and discuss their concerns. He or she begins the process of interviewing the parents, teachers, grandparents, physicians, therapists, etc. with the objective of developing an opinion about the child's best interest. We recommend that no more than two months pass--preferably one month—for the AAL to conduct sufficient research to make an informed recommendation regarding custody.

Step Three: Second Mediation Session

When the AAL has had sufficient time (but not more than two months have passed since the first mediation session), the second mediation session is scheduled and the AAL is asked to attend. By having the AAL participate in mediation, the mediator supplements the traditional model of mediation. In the traditional model, the parents would approve beforehand of anyone being invited to the mediation; in cases of court-referred mediation of high conflict couples, the traditional model must be modified to compensate for one or both parties attempts to manipulate the process. The mediator should arrange for the AAL to share his or her observations of each parent’s circumstances and parenting capacity early in the mediation session. The addition of the AAL’s perceptions may provide a catalyst for moving the discussions forward or in a different direction. The mediator and parents may revise the issues and concerns on the table in light of the AAL’s information.

Perhaps both parents seem willing and able to continue with the mediation process and they are likely to benefit from family therapy that is designed to assist them with navigating the changing structure of their family. In that case, the mediator or AAL could recommend that the parents work closely with a mental health professional over the next two months. If that is the case, the third mediation session could be scheduled after the family has had more time with the mental health professional.

We would expect that no more than two months should pass between mediation sessions. Delaying the resolution process is harmful to family members. In families where violence occurs, obviously time is of the essence for the safety and protection of the family members. If the mediation effort proves to be unsuccessful after several months, the emotional damage to the PAS family has been prolonged (Vestal, 1999.) In PAS families, mediation and attorney-client negotiations can be futile because the lack of a swift directive is often perceived by the aligned parent as an endorsement or approval of his or her alienating behavior (Walsh & Bone 1997.)

Step Four: Termination of Mediation

During the third mediation session, if parents are making progress in therapy and mediation, the mental health professional can be asked to attend the session. The purpose would be to give feedback and offer a plan of action that takes into consideration rebuilding the family with different boundaries. Once individuals marry and bear children, they form a union that may be altered by divorce, but there is still a union, none the less. The relationships simply change form. Typically, high conflict couples have significant difficulties negotiating the losses associated with divorce. A well-trained mental health professional can assist the parents and the children in openly grieving the changing structure of the family.

At this point, either a settlement is reached, or the family is referred back to the court system. Six months or more may have passed, modifications to the traditional one-person mediator model have been attempted, and precautions have been taken to protect the family members. If an agreement is not in the works by the third mediation session, we recommend that the AAL shepherd the case through court to ensure that swift and decisive action is taken by the court to protect the children from further psychological and/or physical trauma (Palmer, 1988; Gardner, 1992.) If mediation is unsuccessful, it may be necessary for the Family Evaluator and the Therapist to testify as to the psychological well being of the children.

Conclusions & Recommendations

We have suggested a model that departs from the traditional mediation model. The principle of self-determination may be preserved if both parents can demonstrate their willingness and ability to mediate in good faith. If either party raises concerns that he or she has engaged in either domestic violence or parental alienation, the mediator must be prepared to use a directive approach and compromise many aspects of client self-determination to ensure a safe process for all concerned.

Collaborative Roles

The model requires cooperation among all the professionals who represent the parents and any others who are appointed to the case. All professionals and practitioners need to be collaborative in their efforts to promote a decision or agreement that is in the best interest of all family members, especially the children. According to Saposnek (1998) attorneys who engage in aggressive legal action, while ignoring the emotional context of the family situation, encourage actions that ultimately have destructive consequences for the children. He believes that attorneys can best serve the interests of their clients by reducing the destructive effects of divorce on the client’s children. Attorneys can repeatedly emphasize to their clients the serious risks to their children of protracted custody litigation. Attorneys also should be aware that the longer the custody case drags on, the deeper and more entrenched the alienation becomes. Ricketson (1991) argues that in cases of severe parental alienation, the child’s relationship with the rejected parent may be permanently and needlessly impaired or even destroyed as a consequence of a prolonged custody case. (Ricketson, 1991; Gardner, 1992.)

Well-Qualified Professionals

The model requires a high skill level, experience with and training in a number of areas for the mediator, the Attorney Ad Litem, mental health professional and any other individual appointed to the case. Vestal (1999) suggests that mediators need knowledge and skills that include mental health expertise, an understanding of child custody evaluation techniques, familiarity with the legal system, and communication/facilitation skills that promote building trust and cooperation between disputing parties. Several practitioners emphasize the responsibility one bears in conducting custody mediation and insists that the mediator be fully knowledgeable, trained, and competent in doing this kind of work. (Kelly, 1983; Gardner, 1992; Saposnek, 1998.) “Ignorance, carelessness, or incompetence on the part of the mediators can have devastating consequences for the lives of the family members involved. We must understand that parent-child bonds are precious and must be preserved and nurtured. Mediators who lack appropriate skills and training may not only be ineffective in mediation, but may also do psychological and emotional harm to children. Clearly this is not something that we can tolerate.” (Saposnek, 1998, p. 281.)

Benefits of a Team Approach

Throughout this article, we have proposed the inclusion of professionals in addition the mediator. We propose the appointment of an Attorney Ad Litem in cases of suspected family violence and/or parental alienation. We also suggest a parallel process of family therapy or psychological help for families who seem likely to benefit from such help.

There are several reasons for recommending a team of professionals to work with high conflict families trying to resolve custody disputes. First, high conflict families are very difficult to work with and often have one parent who is unwilling or unable to recognize the destructive effects of his or her behavior on the family. Using reinforcements to the sole mediator can help maintain focus with couples who have a history of using controlling and manipulative tactics. In addition to adding a measure of control, the extra professional(s) can bring a different perspective to mediation that could serve to broaden the options.

Gold (1984) and Vestal (1999) are proponents of multidisciplinary mediation teams with co-mediators of both genders. Gold (1984) states, “ Some clients may feel threatened by a mediator of the opposite sex… The single mediator is more likely to be perceived as biased by the client of the opposite sex because of the increased caution and mistrust of members of the opposite sex that seem to occur during divorce.” (p. 37) She further asserts that the team approach appears to have greater potential with the type of couple we have described as high conflict because two people can more effectively manage the entrenched psychological patterns that must be put aside in order to reach agreements.

Bibliography: Negotiating Child Custody in High Conflict Divorce

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Clawar, S.S. & Rivlin, B.V. (1991).Children held hostage: Dealing with programmed and brainwashed children. Chicago: American Bar Association.

Cartwright, G.F. (1993). Expanding the parameters of parental alienation syndrome. The American Journal of Family Therapy, 21, 205-215.

Chance, C.B. & Gerencser, A.E. (1996). Screening family mediation for domestic violence. The Florida Bar Journal, April, 1996, 54 - 57.

Corcoran, K., & Melamed, J.D. (1990). From coercion to empowerment: Spousal abuse. Child and Adolescent Social Work. 7(2), 161-175.

Derezotes, D. & Snowden, L. (1990) Cultural factors in the intervention of child maltreatment. Child and Adolescent Social Work. 7(2), 161-175.

Geffner, R. & Pagelow, M.D. (1990). Mediation and child custody issues in abusive relationships. Behavioral Sciences and the Law, 8. 151 – 159

Girdner, L.K. (1990). Mediation triage: Screening for spouse abuse in divorce mediation. Mediation Quarterly, 7. 365 -376.

Gardner, R.A. (1992). The parental alienation syndrome .Cresskill, NJ: Creative Therapeutics.

Gold, L. (1984). Interdisciplinary team mediation. Mediation Quarterly, 6: 27-46.

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Lynda Munro

Judge Munro received her B.A. in 1976 from Connecticut College and her juris doctor in 1979 from the Case Western Reserve University Law School, in Cleveland, Ohio. She was in private practice from 1979 until September 1994, when she was sworn in as a Superior Court judge.

Anita Vestal is a flexible idealist in her many life roles: Mediator, Facilitator, Mentor, Researcher, Writer, Teacher and Trainer. Since 1990 she has had a practice in organizational development and mediation with family, workplace, community parties. She has also held positions in Head Start and adult education at various universities in Texas, Florida and Pennsylvania. In addition to teaching and mediating, she provides training, technical assistance and consulting for community organizations, government and educational programs.

Anita served in the Peace Corps in Latin America for two years. She was the founding executive director of Child Care Consultants, Inc., in York, PA and was Program Administrator for a statewide migrant Head Start program in Florida. Her education includes a BS in Child and Family Development from Virginia Tech, MBA in Management from Texas Tech University and Ph.D. in Conflict Resolution from Nova Southeastern University.  

Her research focuses on conflict resolution with young children, mediation, appreciative inquiry, as well as models for systemic peacebuilding. She has published several articles on mediation in child custody, teaching preschoolers to solve their own conflicts, and transformative teacher training. She is a biographee in Who's Who in American Women and Who's Who in America.


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 Kenneth ,   Tarzana Ca    12/30/13 
 CHILD ABUSE by design... 
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To all those with morals and to all those who love all children, that this David J. Glass Esq. PhD would giggle & laugh at me while waiting to see the judge. Shortly after this attached letter dated 2-12-2012 was received by the community of Malibu, CA this David J. Glass Esq. PhD conspired to injure a 3rd party (myself) , suborned perjury and falsified evidence just before he closed down his practice and went to FMBK Law.The CA State Bar has just received a 2nd complaint regarding this matter. Hollander 2-12-12 Mr. Graham J Miller REGARDING CHILD ABUSE To The Principals of Malibu Elementary Schools and To Whom it may concern within the LAUSD and SMMUSD administrations, Directors or other persons. Dear Sir Madam or MS, I am writing to you firstly as a parent. I have a child in a Malibu public school. I am also writing as a Citizen, and therefore concerned in a more global manner with issues that I personally find disturbing and relevant. I believe a possible failure to perform to ethical codes of several professions, let alone what any normal person may find to be reasonable is about to, and could in the future lead to embarrassment, public consternation and at best a complete lack of faith ,trust and confidence in the above agencies. I have recently been informed by my daughter Lily-Jane Faith Miller that her mother has taken her out of Callahan elementary (Northridge); and she is now at some school in Malibu district. (Grade 2) My reasons for my concern follow. Within the Malibu school district there is a teacher, (C Cullen) who has accused her ex-husband of two counts of sexual abuse of their son, and 5 other counts of abuse of their son (11). This alleged abuse according to Ms. Cullen and her Attorney took place over the past 5 years. I would like a notation in my daughter’s file that she is never to be placed in class with the above person as her “(my daughters)” teacher. I apologize in in that I amenable to provide more details on my daughter’s whereabouts (school) but her Mom has not provided that info. I’m sure Dr Jacob the principal at Callahan would be able to assist. In MS Cullen’s divorce and custody case she utilized the services of a Mr. D Glass Esq.(Attorney) Mr Glass is also a PhD in Psychology .Mr. Glass was also utilized by the mother of my daughter, Lily -Jane in my own divorce and custody matter. Mr. Glass a Psychologist/ Attorney and mandated reporter saw fit to bring allegations of sexual abuse of a child and 4 allegations of other forms of abuse of MS Cullen’s son Sammy before family court. These all were investigated by the Police DCFS, and the District Attorney. They were found to be without either Medical or Credentialed 3rd party verification and closed therefore as unsubstantiated. These allegations were brought by MS Cullen via the services of Mr. Glass and occurred regularly before the summer school break on a yearly basis. MS Cullen had also recently remarried a Mr Brian Winsick another Teacher and coach in the Conejo Valley. Their marriage took place just prior to the allegations beginning. I will now outline my concerns and reasons for the request of the notation in my daughters file. It is my belief that the relationship between this teacher Ms. Cullen and her attorney and my own ex-wife and the same attorney is cause for reasonable concern. That to avoid any unfortunate incident where god forbid I was to be accused by my daughter’s mother of something similar as MS Cullen accused her ex-husband of it is imperative no establish able link is in place as could lead to suspicion of collusion. The worst case scenario that Ms. Cullen at some time becomes my daughters teacher and subsequently claims are made that perhaps my daughter had inferred to MS Cullen that I had abused her ( Lily-Jane) and MS Cullen then could relate this to my daughters mother through their mutual attorney, or contact at school is beyond horrific. I feel the separation of my daughter and this teacher protects LAUSD/SMMUSD and my daughter and me. In a more global sense I am concerned that a teacher married to another teacher and coach and an attorney who is also licensed as a psychologist made no attempt to make aware the LAUSD or the SMUSD of their concerns. (Two allegations of Sexual abuse and five other allegations of abuse.) Surely some ethical codes of their respective professions would demand other relevant or parties who could be impacted be advised. When a teacher finds the resources to pay $500 an hour to a Beverly Hills Attorney for 5 years surely there is a need for verification that such allegations will bring in terms of the expenses the County and State will bear during the protracted conflict. Especially if the accused has been made indigent by the continued claims and has suffered stress or work issues stemming from such accusations and is no longer paying taxes. As a parent I certainly would be outraged if I knew my child’s teacher was aware of a legitimate abuse situation and if, as in this case it included Sexual Abuse allegations and that teacher did nothing to bring attention to it as could protect other children I would expect answers. Specifically why and how a person(s) (2 Teachers, (Coach), An Attorney/Psychologist) would go ahead and consciously disregard accusations of such a serious nature, and then they having brought these allegations before family court and the district attorney go ahead and let other parents arrange activities with the person they were accusing of abuse in a manner as would expose other children to the accused. What is more disturbing and I expect the press will find disturbing is that repeated allegations of this nature are often utilized in family conflicts and that this is acceptable is in fact a failure of morality within our society. I believe this failure may have had a profound societal impact. That the failure of an application of evidentiary standards as are normally applied in criminal matters may have allowed credentialed persons possibly with questionable motive to use family court in a manipulative and deceitful way to achieve their own ends appears to me to be worthy of consideration. This epidemic of claims of abuse of children caught in such situations, (family breakups) versus children, who suffer actual abuse , desensitizes the general public and governmental agencies and allows real and dangerous criminals to hide and operate with virtual impunity in our society. It is beyond Peter and the Wolf it is an ongoing crime against humanity. To falsely perpetrate something that I believe leads to what we are now facing in the LAUSD and SMMUSD and may have exacerbated, perpetuated and indeed by lack of action condoned events and actions that possibly has led to emotional; mental and even physical harm to any child is heinous. I believe because of the actions as I have described many prior red flags have been ignored in many abuse situations and much suffering and harm and expense could have been avoided if a less commonplace attitude of children was the norm. Indeed in the immediate situation with (C Cullen, B Winsick )either the allegations were scurrilous and a product of vitriol, and an attorney(PhD Psych) with who knows what motivation (7 Claims) and that these claims were worthy of public expense .Or these persons were aware the claims they were bringing were false and therefore not worthy of reporting to LAUISD/SMUSD or other parents.? The alternative is an admission of negligent lack of reasonable due diligence and surely a great lack of concern for the school both pupils and other teachers and parents has been flagrantly displayed in total disregard for the safety and welfare of minors. Whether this is or should be a concern for the bond holders of these persons I do not know. Mr. Glass, Glass family Law and former associate of (Kolodny & Anteau) One of the most respected family law firms in the United States (Mel Gibson Getty, etc.) has been investigated by the CA Bar already in this matter and while the complaint was not upheld a letter suggesting the possibility of civil redress was issued by them. The APA also found he did no wrong apparently within their own ethics code. The fact remains an Attorney/Psychologist and a Teacher and a Teacher/Coach surely have some duty to the community. The positions of trust and respect they are afforded should allow the general public a reasonableness within their expectation of propriety and protection of the innocent by such credentialed persons. Perhaps the LAUSD/SMUSD could incorporate or suggest to the CA Bar a cooperative relationship of a professional nature that would allow this protection to be afforded our children as well as draft a code for the LAUSD/SMUSD’s own employees in such situations. Certainly recent events could lead one to surmise that a better clarified way of maintaining the safety and welfare of our children, from both bonifide and false claims of abuse would be helpful. The harm that both real and imagined events can bring to families, as well as collateral persons and an institution such as children’s learning environment should be minimalized at all times. Sincerely Yours, Graham J Miller. 885 Avenue of the Americas Penthouse 1A New York. NY. 10001
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 Daniel ,   Phoenix AZ    08/07/10 
 Seek evidence, don't mind read 
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Those denying PAS are in roughly the same family with those who denied that HIV caused AIDS, only a bit worse I think. Yes we know how science works, we also know how politics works too, particularly the gender variety. Can we please put down the politics and really act like we care about people and children, not gender classes? Otherwise, while this article is largely commendable, the section on "examples of denigrating remarks that mediators should look for" was obviously not evidence based. Any and all of these statements may be entirely legitimate concerns of a parent and to respond to them with prejudice, rather than as an ive and impassive investigator, is to make oneself an incompetent. With lives in the balance, it is more than sad that attitudes such as this abound among this profession. Evaluators and mediators engage constantly in a dance with techniques of mind-reading. That is not their job. Their job is the evaluation of evidence. Evaluators and mediators have no crystal ball and they don't wear robes. The minute they engage in "forensics" that cause the prejudiced treatment of a parent who raises legitimate issues in good faith, they risk endangering children. Parents' statements should be accepted as good faith statements, not examined for non-evidence-based conjectures about what hidden motives "really" animated the statements. Evaluate evidence. End of story. If you think there is something else to your job, you should immediately disqualify yourself as you are arrogating to yourself the role of the judge. You are not. Whatever habits you have assumed, whatever roles have been accepted of you by way of wink-and-nod from attorneys and judges and courts, the fact is that with families and children at stake, you have only one job, evaluate evidence.
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 Chris Hahn,   Bozeman MT    10/05/08 
 Team Approach 
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Setting aside the parental alienation vs.PAS arguments, the article's recommendation of a team approach with multiple professionals is highly valuable.
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 Brian ,   Toronto ON    07/07/07 
 PAS - It's a Reality 
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Ask any parent whose previously loving children have suddenly after a separation jumped 180 degrees and demand never to see them again their views on PAS. Call it what you will, manipulation of children for tactical advantage in a separation is an unfortunately common and very troubling dynamic in high-conflict divorce.
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 Kate        05/10/07 
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The fact that this article authenticates PAS as a syndrome reduces its value. PAS has never been accepted by the medical community,is not listed as a legitimate mental disorder and recently was rejected by the ABA as a legal strategy.
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