Background
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
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:
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:
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.
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