This article was written by Joe Epstein, Hon. Terri Diem, and Steve McBride.
Family law mediation is laced with raw emotions. Abandonment issues abound.
Social disruption is the norm rather than the exception. Emotional pain, sorrow,
sadness, regret and remorse are encountered in circumstances that call for
courage, calm and control. Family law mediators are called upon to ferret out
motivations, interests and needs in what are often trying circumstances. Such
mediators must be prepared to deal with the four basic emotions of grief, anger
fear, and love. We understand that a transparent, open and positive approach (TOP Mediation) is needed in family law mediation. This requires both a
rational analysis and an analysis that attends to emotional issues if the parties are
going to have a sense of fairness, justice, understanding, and closure.
The focus of this article is on the application of TOP Mediation in the context of
the highly emotional and volatile area offamily law mediation. Given the nature
of such a mediation, the emotions of grief, anger, and fear need to be part of this
Since family law disputes abound in fragile and volatile emotions, hidden agendas,
vindictive actions, and use of the legal venue to exact vengeance and retribution,
it is important that mediators model balance, calm, and fairness. This can be done
most effectively with a transparent (T), open (a) and positive (P) approach. This
process utilizes caucuses, facilitative discussions and evaluative intervention. The
idea is to create an open dialogue which models appropriate communication for
later in the conflict process. Use of transparency helps to recreate some trust in a
setting where trust and respect have been shattered. The mediator’s positive
tone can set a stage where families can find a new way to communicate that fits
the new circumstances. We engage in TOP Mediation with a strong tone that
creates an agenda, gives the parties “voice”, sets boundaries and allows the
parties to build some level of trust if at all possible. It is our belief that the
broader goals of TOP Mediation can only be accomplished if we attend to the
emotional components of family law mediation.
Grief is the emotional turmoil associated with a lost or drastically altered
relationship. It is a painful and heartfelt reminder of lass.
Grief, in the context of divorce, is clearly a profound personal reaction to the loss
of a relationship, the loss of a way of life and often the loss of financial security.
Uncontrolled change can stir this emotion. The disruption of the family unit may
involve feelings of regret, remorse, despair, abandonment and emptiness. These
feelings in some combination are the context of the emotion we identify as grief.
We have seen grief expressed by withdrawal, crying and other expressions of
pain. Counsel and meditators must be sensitive to the expression of grief. The
best place to start is with empathic listening. Empathic listening honors another’s
expression of grief and draws on parallel if not similar experiences. If the parties
feel that you understand them, they can open up and express their underlying
concerns and emotions.
Anger is that dark emotion that blinds us, rendering us unable to think, reason and
Anger is a blinding emotion that colors and filters perceptions. Anger creates an
opaque looking glass that distorts our perceptions of reality. Not only is our
vision distorted, but the ability to think rationally often deserts us when we are
gripped by anger. Parties gripped by anger cannot be expected to think
objectively. As mediators, we need to find a way, either through a caucus or a
staggered start, for anger’s expression. We need to listen. We need to have the
compassion to walk in another’s shoes. Only then can we guide, coach and model
productive approaches to conflict resolution.
As family law mediators, we often encounter the scenario where one parent has
been taking care of the children and has not worked for 20 years or more. The
other parent is having an affair and has filed for a divorce. The care-taking parent
is now in their 50s and have no means of support. That parent is feeling fear, but
often expresses this fear with blinding anger. As a result of the anger, the parent
may be antagonistic and resist anything the other parent proposes. Anger, in
particular, disrupts negotiations by reducing the level of trust, narrowing the
parties’ focus of attention and changing their main goal from reaching settlement
to retaliating against the offender.
With anger, the key for the mediator is to diffuse the emotion by staying calm,
listening to the parent and your own instincts, and not challenging or matching
the anger being expressed. The caucus can be used as a safe place to vent. Other
methods of dealing with the anger may involve interrupting the conversation or
taking a cooling off break. Since anger can represent a potential for danger, if the
conversation becomes over-heated or destructive, the mediator should become
more assertive and offer specific guidelines to govern the communications.
Fear is the emotion that brings out either the coward in us or the courage we have
in reserve. We have to overcome the former and embrace the latter.
Fear is the apprehension, dread and fright that accompanies drastic change.
Divorce is such a change. Suddenly one’s life becomes unpredictable. People are
forced from their comfort zone and uncertainty abounds. Self-confidence, selfesteem
and self-actualization come under attack from the twin dragons of anxiety
and fear. The anxiety is from within, the fear is external. People in fear have a
powerful sense of insecurity and uncertainty. Fear can leave one paralyzed and
feeling powerless. In the midst of despair, parties can fall prey to the siren’s call
to cowardice or heed their inner call to courage. We have seen both crippling
fear and amazing courage in our family law mediations.
Often in family law mediations, one parent is faCing the possibility of the other
relocating out of state with the children. In such instances the predominate
emotion is fear. The terrible but very real fear of losing their connection with their
child or children may be expressed through avoidance, anger, or sadness. The
mediator or counsel should help the parent identify and acknowledge his or her
feelings. Empathic listening (also called “active listening”) comes first and is the
foundation for the trust that must be established. Personal stories or experiences
are helpful to develop a connection and trust. Once the emotions have been
vented, the mediator can then assist the parent in emotionally reframing and
reappraising the current situation in order to analytically problem solve and come
up with a solution. Depending on the circumstances, this could be done in either
a group session or caucus.
Experience shows us that grief, anger and fear are often barriers to rational
conflict resolution in the family law mediation arena. It is our belief that more
often than not these feelings must be explored and acknowledged if the parties
are going to be able to avoid protracted and costly litigation. Utilization of TOP
Mediation allows the parties to find a way to successful mediations that resolve
current conflict and provide a methodology to address future conflicts.
Grief, Anger and Fear. On the rare occasion, a family may find itself involved in a
situation where one parent discovers the other has been sexually abusing their
child. This would involve the expression of all three emotions of grief, anger and
fear, cycling through stages. Since such a scenario usually consists of the
involvement of social services, the criminal justice system and the family court
system, it would be crucial to approach any mediation with a collaborative effort.
A mediation may not be appropriate, but if it is, the use of experts would be very
important, especially psychological experts. Such a mediation may occur if social
services and law enforcement decline to be involved, but one parent is still
making the allegations of sexual abuse.
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