How to Mediate High-Conflict Cases: Balance and Control

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.

Like a lot of ADR researchers, I’m always interested to know what really happens in the black box that is the mediation session. So, when someone pries the box open to look inside, my eyes light up. Researchers have begun using conversation analysis to uncover what happens in mediation that leads to successful outcomes. (Mary Novak wrote about another example of this fascinating research method before in this blog.) The latest contribution to this research comes from Norway, with a study of 154 custody mediations.

The study by Peder Kjøs, Odd Arne Tjersland and Katrina Roen, described in “The Mediation Window: Regulation of Argumentation and Affect in Custody Mediation,” (Journal of Divorce & Remarriage, Vol 55, Issue 7, pp 527-538), focused on the 38 cases that were considered to be high-conflict. In those cases, successful mediators were found to control the course of the conversation and effectively move it between emotional content and factual content. This contrasts with the actions of the mediators in the unsuccessful mediations. Those mediators tended to steer away from emotional issues and focus more on factual ones.

In the case presented in depth, when the conversation became too emotional, the mediator asked a factual question, defusing the emotional intensity of the parents. She then reopened the emotional content at a later time. This balanced the discussion between the father’s desire to keep the conversation factual and the mother’s need to work through her emotions before making decisions. This was necessary because, the researchers note, the father [did] not take part in constructing a space for emotionality, whereas the mother oppose[d] the construction of the space for practical decision making,” leading to a stalemate between them.

The conversation sample analyzed in the article occurs at the beginning of the first session. The parents are in the midst of completing intake forms and are answering simple factual questions about the family when the mediator asks the father, “I see here that you were the one to make the call and book this appointment, but did you agree on it, or . . .?” When the father states that he did it on his own initiative, the mediator then asks, “It was you who took the initiative both to make the call and to separate, too?” The confirmation from the father leads to the mother’s admission that she doesn’t want to separate and to the mediator eliciting information about how the mother feels about the separation. When the mother starts to turn to the topic of the father’s new girlfriend, the mediator interrupts with a question about the number of children involved, thus bringing the conversation back to factual content. This pattern of the mediator introducing conflict material, one of the parents amplifying the conflict, then the mediator refocusing the parents to less conflictual material is repeated throughout the mediation. Importantly, this refocus is repeated at points when the conversation becomes too factually rational, not just times when it becomes too emotional.

The authors acknowledge that the mediator’s actions are only part of the equation in a successful mediation. The parents must follow the mediator’s lead and allow her to control the discussion. But it does provide evidence of the need for an active and skilled mediator who can balance the discussion between emotional and factual content in high-conflict mediation. It also calls into question the model in which the mediator’s role is to empower the parties to discuss their issues the way they want to, although further research is needed to confirm the need for mediator control in high-conflict cases.

                       

Jennifer Shack

Jennifer Shack is Director of Research at Resolution Systems Institute (RSI), a Chicago-based nonprofit working to improve access to justice through court alternative dispute resolution (ADR). Jennifer, who has been with RSI since 1999, is one of the foremost court ADR researchers in the field. She focuses on conducting complex… MORE >