Interparental discord is part of life and children will most likely be exposed to some unpleasant interactions. Research has shown that it is not the conflict that threatens the children’s well-being; rather, it is leaving it unresolved. Given that children not only react to conflict but also to how it is managed, evidence suggests that it is important for parents to find ways to work things out in a positive manner. Engaging in and exposing children to interparental conflict resolution techniques will not only teach fundamental skills that they will need for their own future conflicts, but it will also provide them with a strong sense of security and emotional well-being.[i]
Marital breakdown inflicts a great deal of stress and anxiety on all members of a family. Studies have shown that the process of divorce acts as a depressing force on the parents’ basic psychological needs.[ii] Communication skills are also greatly impacted and parents find themselves trapped into a vortex of conflict. In many cases, the act of divorcing or separating has been associated with an increased risk of violence and, in extreme instances, it has led to death. A recent study by Ellis and Stuckless revealed that separation triggered a six-fold increase in femicides (male killing their female partners), a seven-fold increase in femicide-suicide (males killing their female partners and then killing themselves), and a five-fold increase in suicides (for men only). The risk is higher during the first few months following separation initiated by females.[iii]
The effects of domestic violence extend beyond the parties experiencing the abuse first-hand. Studies have shown that children who witnessed domestic violence experienced problems that are similar to those who were directly abused by their parents. These difficulties translated into low self-esteem; psychological, emotional and behavioural disruptions; poor quality of life and problems with future relationships.[iv] Children’s exposure to domestic violence has also been associated with development of post-traumatic stress disorder.[v] Some argue, and there is support for this hypothesis, that violence is a learned behaviour and, so, children who witness violence are more prone to use violence in their future relationships.[vi]
Communication about mediation is just as important as communication during mediation. Information about mediation is packaged and communicated to divorcing couples, well before they engage in the process. As such, advance framing of mediation primes couples to interpret and respond in specific ways. George Lakoff, professor of cognitive science and linguistics, explains that frames are the “mental structures that shape the way we view the world.”[vii] While not at the conscious level, these frames are influential factors in decision-making, behaviour and the way data is processed by the brain. As such, words associated with frame, evoke the frame.[viii]A well-known example, the command: “don’t think of an elephant”, demonstrates that even in those instances where a frame is negated (“don’t think”), one would still not be able to “block the frames from being accessed by their unconscious mind.”[ix] The image of the elephant still comes to mind. This unique feature of the inner workings of the brain highlights the importance, and impact, of strategic communication. Anchor words and phrases are utilized on a daily basis in order to tap into the unconscious and bring about or formulate links to specific frames.
Similar narratives exist in the context of mediation. Traditionally referred to as “family mediation”, over time, this label grew to incorporate the word “law”. Presently, “family law mediation” is used almost interchangeably with “family mediation”. Applying cognitive linguistics, inserting the word law not only that it evokes a legal frame, but also places family mediation in the legal context. In this form, intentionally or not, family law mediation communicates a dichotomous message. On one hand, mediation, in its original form, is in the hands of the parties and decision-making process is heavily based on their interests. Parties’ autonomy and self-determination is preserved. Outcomes are mutually agreeable and, as long as the parties’ interests are met, strict adherence to legal rules is not the primary focus. For example, parties may know the book value of their vehicle, but if one expresses a sentimental attachment to it, they can agree, in mediation, to a different value that matches more closely the sentimental value.
On the other hand, by including the word “law”, the mediation process gets shifted away from the hands of the parties and into a rule-based setting with more pronounced legal oversight. Parties’ autonomy is inhibited and emotions do not have much room at the table. Focus is on following rules and applying the law, regardless of parties’ underlying interests.
The association of “family” and “law” causes, intentionally or not, to mesh together values, beliefs and principles from two polar opposite arenas. This further contributes to the confusion of how mediation gets perceived in the public sphere. In addition, this grouping blurs the line between values of clearly divergent systems. For example, family values generally represent values such as moral support, warmth, caring, protection, respect, compassion and responsibility. In contrast, the legal system promulgates values such as norms, rules, obligations and steps to enforce the law. Of important note is that these two antithetical systems generally come together only when problems arise, such as a family member’s rights have been infringed upon, a child is at risk of harm, decision-making capacity is questioned or other issues that are generally written as rules of law. Therefore, grouping together “family” and “law”, in the context of mediation, may communicate a negative and/or unintended message to the public.
The label of ADR (Alternative Dispute Resolution) is another potentially misleading message communicated to divorcing couples. This may cause the parties to wonder whether the “alternative” label of mediation makes it a less desirable or acceptable option to litigation. The tendency to position court as an equally effective forum to resolve family matters goes against the empirical research that has undeniably shown the irreparable damage and deleterious consequences of court. It also goes against the warnings of our family court judges who consistently encourage families to resolve their matters in mediation and out of court. Even more concerning is the fact that it may pressure families to move away from a process that has existed for thousands of years and into a system that admittedly cannot adequately address all presenting issues when families experience divorce or separation. In addition, the push for litigation of family matters, such as divorce, further contributes to stonewalling the development of fundamental problem-solving skill-sets as well as the removing and stripping away critical elements that individuals need to resolve conflict in a healthier manner.
As already discussed in this paper, marital dissolution triggers a wide range of issues. It is disruptive of emotional, cognitive and physiological systems. It depletes parents and children of critical reserves necessary to respond in a functional manner to stressors; and it increases the risk of domestic violence. As such, when supporting families through divorce, it is imperative to thoroughly understand the complex interplay of these dynamics. Recognizing and properly dealing with these elements can help parties regain a sense of equilibrium and achieve optimal and sustainable outcomes. On the other hand, amplifying the hurt can manifest in extreme dysfunctionality, anywhere from harbouring internal stresses to more overt behaviours that are harmful not only to the parties but to the community at large.[x]
More than 45% of first marriage end in divorce.[xi] Due to growing body of research demonstrative of the profound damages of going to court, more families are opting for family mediation to resolve the matters that arise out of their marital relationship breakdown. Family mediation is a third neutral-person (family mediator) facilitated process aimed at supporting and guiding separating parents achieve a mutually acceptable agreement. Employing a variety of strategies, family mediators help parents gain a deeper understanding of each other’s needs and actively participate in generating options to meet those needs. Mediators do not impose decisions for the parties and, with few exceptions, participation is voluntary and confidential. Research has noted many advantages of mediation versus litigation such as: mediation is more expedient, less adversarial and less expensive than litigation. In addition, going to court, has been associated with conflict escalation and deleterious consequences, including cases of homicide-suicide.[xii]
The family mediation process is designed and presumed to be empowering for the parties. Furthermore, it is dedicated to the promotion and upholding of core values such as self-determination, choice and autonomy.[xiii] Preserving these values has been directly correlated with positive post-separation family adjustment and durability of agreements.[xiv]
Effective communication is the ground-stone of mediation. Several skills have been identified as important in the dispute resolution setting: listening, questioning and reflecting.[xv]
Macfarlane et al. suggest that listening, especially “active listening”, is an essential skill for mediators.[xvi] Active listening enables the mediator to hear the parties’ issues, whether expressed verbally or non-verbally. The listening goes beyond the facts, to uncover parties’ underlying interests and reasons why they are in conflict.[xvii] When parties feel heard and understood, they are more willing to actively participate in mediation and work towards creating mutually desired outcomes.[xviii] Mastering active listening is not a walk in the park. It requires extensive training and commitment to self-reflective practice. Although more research is needed, the following strategies are some that have been identified as important for the family mediator to learn: a) the ability to reframe, b) recognize and acknowledge parties’ emotions,[xix] and c) summarize issues.[xx] Reframing is central to active listening. It enables the mediator to shift parties’ meanings towards common goals and strategically frame issues in a more positive or neutral way.[xxi] Appropriately recognizing and attending to parties’ emotions creates the foundation for parties to communicate about their conflict, while simultaneously, having their emotional managed.[xxii] Effectively summarizing parties’ statements and discussions is a great opportunity for the mediator to demonstrate that she understood the parties’ issues. It is also an opportunity for the mediator to clarify and refine the issues with the parties. [xxiii]
Another helpful technique is the tactical use of open-ended questions. When carefully constructed, parties’ answers to these questions provide a window into underlying interests and attachments to specific issues. Importantly, it enables parties to hear each other’s views and provides the space to clarify any ambiguities.[xxiv]
Central to establishing and maintaining rapport is the mediator’s ability to reflect back to the parties feelings they have expressed, verbally and/or non-verbally.[xxv] Reflecting critically is a very delicate process of exchange and learning. Its dual dimension can expose parties or the mediator to vulnerabilities. As such, it requires a sophisticated understanding of human behaviours and nuances. In addition, there needs to be a willingness on the part of the mediator to let go of personal biases or judgements, and strive to create a supportive and collaborative environment.
Mediation has been shown to produce better results when parental communication skills were at least adequate. In addition, mediators with greater communication competence were found to be more effective in helping parties reach agreements.[xxvi] Mediation in the family context is vastly different than any other types of mediation. Divorcing couples experience a host of emotions, some for the first time. It is, therefore, critical for mediators to constantly assess for verbal and non-verbal communication cues in order to adequately facilitate productive discussions and avoid creating [more] harm for the parties. In order to do so, some argue that the mediator must acquire a high level of intercultural competency; without which, it would be difficult to appropriately interpret emotional cues and empathize with parties who have different values and views.[xxvii]
“Culture is the shared, often unspoken, understandings in a group … the places where we make choices about what matters and how, … a series of lenses that shape what we see and don’t see, how we perceive and interpret, and where we draw boundaries. … [Culture] shapes our ideas of what is important, influences our attitudes and values, and animated our behaviour.”[xxviii]
Given the increasing diversity and changes in familial needs, it is essential that mediators are aware of their own internal mechanisms, biases and communicative styles. Equally important is the mediator’s ability for self-awareness and staying away from creating associations based on observed behaviours. For example, many emotions remain hidden and, so, Nicholas Epley, social psychologist, warns against jumping to conclusions and associations based on facial expressions. He states: “Despite this popular appeal, the scientific credibility of claims about micro-expressions is currently weak, at best. First, our intuitive sense that our emotions leak out and are clearly visible to others looks to be more of an egocentric illusion than objective reality.”[xxix]
Language is another important element strongly connected to one’s culture (“To speak means to choose a particular way of viewing the world”).[xxx] Language is not just a set of grammatical rules. It is the vehicle that carries meaning, sense and relatedness to particular groups or communities. The words, metaphors, classifications – are all organized in such a manner that connects humans to others.[xxxi] Each group or community has its own pattern of communication. Mediators, in a way, assume the role of translators between cultures. It is common knowledge that different communities associate different meanings to particular words, which makes them very difficult to translate. For example, not all English words articulated by a non-English speaking parties carry the same meaning as they would for individuals whose first language is English. So, using word-for-word translation in mediation may lead to misunderstanding and frustration. Ideally, the translator wants to understand and relay information that is as close as possible to its original form. In reality, though, there are thousands of culturally-bound terms that do not have equivalency in the translator’s language. Translators, therefore, need to acquire “cultural literacy, communicative language competences and cross-cultural competencies as well”.[xxxii] Culturally competent mediators are familiar with how powerful all of these elements can be and they specifically create space to explore individuals’ expectations and understandings.[xxxiii]
The intricate relationships of all cultural factors are magnified in the family mediation context. Human inter- and intra-marital relationships, attachments, cognitive and emotional networks, hopes and dreams – all play a significant role in a family’s reorganization process. Families experience marital breakdown and conflict in various ways; based on individuals’ cultural background experiences, socio-political context, expectations, value systems and more. These diverse views directly and deeply impact the ways individuals expect and interpret satisfactory resolution.
It goes without saying that the educational background of a family mediator has tremendous impact on the type of knowledge and skill set one acquires. In addition, the more one practices new skills and gains experience, the more ingrained and easier to access these skills. While this latter statement was believed to be the case for quite some time, recent advancements in neuroscience have generated more robust evidence to support it. To demonstrate this statement, I will shift the focus on a brief description of the physiology of the brain.
The brain consists of approximately 100 billion cells, called neurons, all interacting with each other through chemical and electrical signals. The neural connection pathways, called synapses, can become stronger or weaker, depending on the degree of reinforcement. In other words, the more a skill or action is practiced and repeated, the stronger it becomes. Conversely, the less or no practice leads to the weakening and eventually disappearing of these connections. These connections play an important role in transmitting and solidifying of information. The brain likes to learn and to get rewarded for it. Every time a successful connection (learning) is being made, “happy” neurotransmitters, such as dopamine (reward), are released into the brain.
Illustration of neuron communication[xxxiv]
These connections help with individuals’ learning to categorize information, emotions and objects which trigger specific responses, some even without conscious awareness. For example, when one sees a German Sheppard, they respond dog rather than cat or other type of animal; it is an automatic response. While there is so much more to study and learn about the structure of the human brain, recent studies in cognitive psychology and neurobiology have attempted to explain this process of automaticity and modes of accessing stored information.[xxxv] Presenting on variable operationalization is beyond the scope of this paper. However, it is worth noting that these connections form neural patterns that act as the primary centre where an individual will go to retrieve information about how to respond. The stronger the patterns and the longer an individual has been practicing, the more “automatic” the responses become. This knowledge is useful when considering the implications of individuals’ professional training and the strength of automatic behaviours and thought processing.
Family mediators come from diverse backgrounds such as legal, mental health, social work, financial and others. This paper’s focus is primarily on mediators with legal background and those with mental health training. Having legal or mental health education should not be confused with the authorization of providing legal advice or therapy. That is, when acting in the role of mediator, regardless of educational backgrounds, lawyers cannot provide legal advice and counsellors cannot provide therapy to parties engaged in the mediation process. Mediators can provide information deriving from their respective backgrounds, but they are expected to remain neutral and act unbiased for all parties.
For clarity, it is important to distinguish between legal and mental health training and how its respective tenets impact the mediation process and conflict management. The curricula for each legal and mental health education are inherently different and some may argue that they teach completely opposite skills. The discussion below attempts to explore the degree to which the academic background enhances or inhibits a family mediator’s ability to conduct effective mediation.
The “thinking like a lawyer” catch phrase has been around for some time now and it is one of the many distinguishing outlooks that lawyers are taught, starting with the first year of law school. Students are imparted knowledge about fact gathering, ordering and synthesizing facts, understanding and interpreting rules and opinions.[xxxvi] Practiced over time, the “thinking like a lawyer” thought process establishes itself as a distinct and deeply rooted cognitive pattern, shaping a lawyer’s world-view and manner in which they approach situations. Law professor, Leonard Riskin, noted: “Lawyers are trained to put people and events into categories that are legally meaningful, to think in terms of rights and duties established by rules, to focus on acts more than persons. This view requires a strong development of cognitive capabilities, which is often attended by the under-cultivation of emotional faculties.”[xxxvii]
Lawyers are trained to advise and advocate for their clients. Formulating rights-based arguments and winning against the other side is promoted as the main objective. With a focus on “rights-based advocacy”[xxxviii], legal training imparts knowledge of rules, cognitive analysis and justice.[xxxix] Little or no attention is dedicated to emotions, relational elements or psycho-social fabric of individuals.[xl] Cases follow precedents or set new ones, and, barring some exceptions, the rigid assembly of rules is intended to be applied to every new case.
Whereas mediation is about maximizing all parties’ interests (in other words, expanding the pie), legal training is about securing as much of the pie as possible for the benefit of one party and to the detriment of the other. This has a direct effect on the communication between a lawyer, the opposing legal counsel and the parties. Competition, rather than cooperation, is placed at the forefront asserting that in conflict there will be winners and losers and “a good lawyer is always on the winning side”.[xli] Lawyers are trained to go to court and win for their clients. Furthermore, lawyers have to speak for their clients i.e.: position things, educate and offer legal advice and argue their cases. These communication techniques are in contradiction with the mediation principle that requires the mediator to act for both parties’ mutual benefit.
Lawyer-mediator’s neutrality, when communicating with the parties, may also be unattainable or brought into question, given the lawyer’s mandatory adherence to the code of professional conduct[xlii] which may inhibit their capacity to shift from an advisory into a neutral position. For example, rule 3.4-3 states that “…a lawyer shall not represent opposing parties in a dispute.”.[xliii] The commentary to this rule goes on to state: “A lawyer representing a client who is a party in a dispute with another party or parties must competently and diligently develop and argue the position of the client. In a dispute, the parties’ immediate legal interests are clearly adverse. If the lawyer were permitted to act for opposing parties in such circumstances even with consent, the lawyer’s advice, judgment and loyalty to one client would be materially and adversely affected by the same duties to the other client or clients. In short, the lawyer would find it impossible to act without offending the rules in Section 3.4.”[xliv] Unless a lawyer-mediator can fully compartmentalize and suspend this rule in mediation, then it presents a real concern and brings into question the genuine ability to remain impartial and focus on promoting both parties’ interests into reaching mutually agreeable outcomes.
Given the legal training and the obvious challenges of crossing from a legal to mediation role, lawyer-mediators’ preferred style of negotiation is a rights-based approach[xlv], oftentimes employing a more evaluative, directive communicative style; this, some argue, may undermine parties’ self-determination.[xlvi] In the divorce mediation context, a study found that mediator-lawyers’ negotiation styles were “more adversarial and less problem solving”.[xlvii]
To mediate “under the shadow of the law” requires legal knowledge, but does not require knowledge of relational and cognitive elements underlying clients’ stated positions.[xlviii] Professor Martha Fineman noted that an “attorney is neither equipped nor interested in dealing with a client’s emotional upheaval. He is looking for a settlement that can be taken into court for approval.”[xlix] While rights-based approach to negotiation may produce the best legal outcome, it comes with a big caution, grounded in evidence submitted by Dr. Ellis[l] and supported in paragraphs above. That is, unresolved relational and interpersonal issues will impact the quality of post-separation parental and parental-child relationships and the durability of their mediated agreements. In addition, applying a rights-based approach to negotiation may shift focus away from parties’ need to build trust and effective communication. Parties’ ability to freely express may also be inhibited[li], which often leads to feelings of emotional exhaustion and inadequacy.
In contrast to legal education, mental health training focuses on understanding human behaviour and developing techniques to promote functional change.[lii] Students learn communication skills such as active listening, rapport building, use of open and closed-ended questions, counseling and advanced empathy. They learn how to assess and strategically respond to a wide range of client behaviours, emotions and thought-processing. Finally, they learn to delve deeper and navigate client’s intrinsic motivations, which is important in understanding and formulating specialized plans to move forward in optimal capacity. In other words, the role of the mental health practitioner is a supportive one.
In order to understand what moves people in a particular direction, it has been argued that there needs to be a deeper knowledge of the internal workings of human behaviour. What is expressed on the outside, be it through the use of verbal or non-verbal communication, it is considered to have deep connections that need to be explored and understood.[liii] Highlighting the need to address emotion, Roman philosopher and lawyer, Tullius Cicero, wrote: “For men decide far more problems by hate, or love, or lust, or rage, or sorrow, or joy, or hope, or fear, or illusion, or some other inward emotion, than by reality, or authority, or any legal standard, or judicial precedent, or statute.”[liv] Today’s research agrees and continues to show support to this statement. Emotions are considered key to decision-making.[lv]
In the context of divorce mediation, “feelings may be more important than talk”[lvi] and mental health mediators focus much more on this aspect. Given their training, mental health mediators conduct mediation with a greater focus on parties’ emotions and with more success at eliciting underlying interests.[lvii] As shown in paragraphs above, divorce is a very emotionally charged event, with potentially long-lasting psychological, psychical and social disruptions. The skills and approaches employed by mental health professionals may reduce and protect against incidence of conflict. That is, by strategically managing parties’ interpersonal communication, these professionals can help the parties develop new patterns of communication that they can effectively utilize post-separation.
Acquiring and establishing a functional communication pattern is of paramount importance for parents and children. The reality is that where children are involved, the parental relationship does not really end because of divorce; rather it is changing. Mental health professionals are trained not only to develop but also to recognize and explain critical concepts, such as family dynamics, the impact of verbal and non-verbal communication on coparental and parental-child relationships. In addition, they are better equipped than lawyers to provide parents with emotional and behavioural strategies to reduce the stress or other negative emotions associated with divorce. Based on observation of parental communication patterns in mediation, mental health professionals are able to pick up on subtle cues and fine details that play an important role in formulating parameters and guidelines in post-separation relationships. In addition to parents and children benefiting from this approach, the research has shown that when divorce mediation was conducted by a mediator with mental health background, not only co-parental relationship improved but also the mental health of their children.[lviii]
Given the serious implications of constructive and destructive communication patterns on families and children, family mediators should be equipped to understand interparental communication. Aligned with the spirit of this paper, the following recommendations follow for all mediators, regardless of their respective professional training (legal or mental health):
Canadian families are diverse and so are their needs. Deeply embedded within the human core, there are complex structures consisting of cognitive processes, emotional capacities, cultural identities and personal beliefs. When experiencing divorce or separation, all of these elements are disrupted, affecting all family members at various degrees. In addition, the act of divorce may trigger some legal consequences that the parties have to navigate and make appropriate decisions for their families. As evidenced in this paper, the impact of divorce can be devastating, painful and traumatic. While family members are all affected differently, a plethora of research has shown that they are vulnerable. Stressful events such as divorce trigger the release of neurotransmitters in the brain which, in turn, manifest in a multitude of conflicting emotions. It is important not only to recognize these emotions but also to respond appropriately. One effective way of doing that is by employing some of the effective communication techniques described in this paper (i.e.: active listening, summarizing, reframing). Evidently, one size does not fit all and, as such, family mediators require a sophisticated mechanism to effectively support individuals through divorce or separation. Its foundation has to be multidisciplinary, holistic and malleable; so that it preserves parties’ autonomy and provides an optimal framework where most suitable resolution options can be generated.
Lastly, it is essential to understand that family mediators are neither lawyers nor therapists. They are a distinct professional group of practitioners who draw from their respective trainings to support and guide divorcing couples. To date, there is no research showing a correlation between a particular educational background and the success at being a family mediator. The ongoing debate over whether a lawyer or a mental health professional is better equipped than the other to mediate, distracts from the necessity of establishing a model whereby legal and mental health skills are strategically combined to support divorcing families. Rather than pointing out the disadvantages of each individual professional (lawyer versus mental health professional), efforts should be dedicated to focussing on the advantages of a multi-disciplinary team who can adequately support these families through the difficult process of divorce.
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[i] Davies & Cummings, supra note 6 at 405.
[ii] Lucas, R. E. (2005). Time does not heal all wounds: A longitudinal study of reaction and adaptation to divorce. Psychological science, 16(12), 945-950.; Björkenstam, E., Hallqvist, J., Dalman, C., & Ljung, R. (2013). Risk of new psychiatric episodes in the year following divorce in midlife: Cause or selection? A nationwide register-based study of 703,960 individuals. International Journal of Social Psychiatry, 59(8), 801-804.; Lund, R., Christensen, U., Holstein, B. E., Due, P., & Osler, M. (2006). Influence of marital history over two and three generations on early death. A longitudinal study of Danish men born in 1953. Journal of Epidemiology & Community Health, 60(6), 496-501.
[iii] Ellis, D., & Stuckless, N. (2006). Separation, domestic violence, and divorce mediation. Conflict Resolution Quarterly, 23(4), 461-485. [Ellis & Stuckless, 2006]
[iv] Wolfe, D. A., Crooks, C. V., Lee, V., McIntyre-Smith, A., & Jaffe, P. G. (2003). The effects of children’s exposure to domestic violence: A meta-analysis and critique. Clinical Child and Family Psychology Review, 6(3), 171-187.
[v] Adams, C. M. (2006). The consequences of witnessing family violence on children and implications for family counselors. The Family Journal, 14(4), 334-341.
[vii] Lakoff, G. (2014). The all new don’t think of an elephant!: Know your values and frame the debate. Chelsea Green Publishing.
[ix] Ibid. at 2.
[x] Ellis & Stuckless, 2006, supra note 18.
[xi] Kreider, R. M., & Ellis, R. (2011). Number, timing, and duration of marriages and divorces: 2009. US Department of Commerce, Economics and Statistics Administration, US Census Bureau.
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[xiii] Bush, R. A. B., & Folger, J. P. (1994). The promise of mediation.
[xiv] Ellis, D. (2017). Lawyers as participants in mandatory divorce proceedings: Access to justice, process and outcome dangers for women.Violence Against Women.
[xv] Macfarlane, J., Manwaring, J., Zweibel, E., Daimsis, A., Kleefeld, J., & Pavlovic´, M. (2016). Dispute resolution: Readings and case studies.
[xvii] Fisher, W. U., & Ury, W. (1991). R., Patton, B.: Getting to yes: negotiating agreement without giving in. [Fisher & Ury]
[xx] Macfarlane et al., supra note 30.
[xxi] Ibid. at 353.
[xxii] Fisher & Ury, supra note 32 at Chapter 3.
[xxiii] Macfarlane et al., supra note 30 at 361.
[xxv] Ibid. at 360.
[xxvi] Hahn, R. A., & Kleist, D. M. (2000). Divorce mediation: Research and implications for family and couples counseling. The Family Journal, 8(2), 165-171.
[xxvii] Deardorff, D. K. (2011). Assessing intercultural competence. New Directions for Institutional Research, 2011(149), 65.
[xxviii] Michelle Lebaron & Venashri Pillay. Conflict across Cultures: A Unique Experience of Bridging Differences (Boston, London: Intercultural Press, 2006) at 14.
[xxix] Epley, N. (2015). Mindwise: Why we misunderstand what others think, believe, feel, and want. Vintage at 165.
[xxx] Durdureanu, I. I. (2011). Translation of cultural terms: possible or impossible?. The Journal of Linguistic and Intercultural Education, 4, 51.
[xxxiii] LeBaron, M., & Zumeta, Z. D. (2003). Windows on diversity: Lawyers, culture, and mediation practice. Conflict Resolution Quarterly, 20(4), 463-472.
[xxxiv] Ford, D. J. (2011). How The Brain Learns. Online < https://trainingindustry.com/articles/content-development/how-the-brain-learns/>
[xxxv] Ashby, F. G., Ennis, J. M., & Spiering, B. J. (2007). A neurobiological theory of automaticity in perceptual categorization. Psychological Review, 114(3), 632.
[xxxvi] Zemans, F. K., & Rosenblum, V. G. (1981). The making of a public profession (p. 12). Chicago: American Bar Foundation.
[xxxvii] Riskin, L. L. (1982). Mediation and lawyers. Ohio St. LJ, 43, 29.
[xxxviii] Macfarlane, J. (2017). The New Lawyer, Second Edition: How Clients Are Transforming the Practice of Law (2nd ed.). UBC Press. [Macfarlane 2017]
[xxxix] Daicoff, S. S. (2012). Expanding the Lawyer’s Toolkit of Skills and Competencies: Synthesizing Leadership, Professionalism, Emotional Intelligence, Conflict Resolution, and Comprehensive Law. Santa Clara Law Reveview, 52, 795.
[xli] Macfarlane supra note 53.
[xlii] Law Society of Ontario, Rules of Professional Conduct Guidelines. Online: < https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-3>
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[xlvi] Stark, J. H. (1997). The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, from an Evaluative Lawyer Mediator. S. Tex. L. Rev., 38, 769.
[xlvii] Ellis supra note 29.
[xlviii] Mnookin, R. H., & Kornhauser, L. (1979). Bargaining in the shadow of the law: The case of divorce. The Yale Law Journal, 88(5), 950-997.
[xlix] Fineman, M. (1988). Dominant discourse, professional language, and legal change in child custody decision-making. Harvard Law Review, 727-774.
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[li] Macfarlane 2017, supra note 53.
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[liii]Reilly, P. (2005). Teaching law students how to feel: Using negotiations training to increase emotional intelligence. Negotiation Journal, 21(2), 301-314.
[liv] Cicero, D. O. (1942). trans. EW Sutton and H. Rackham. London: William Heinemann, 3, 202.
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[lvi]Fisher, W. U., & Ury, W. (1991). R., Patton, B.: Getting to yes: negotiating agreement without giving in.
[lvii] Coombs, R. M. (1984). Noncourt-connected mediation and counseling in child-custody disputes. Family Law Quarterly, 469-495.
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Originally posted at the iPleaders blog.What can you do if you think your case cannot be resolved by mediation? What can you do if you feel the mediator is being...By Amartya Bag