Family Mediators Need Crisis Intervention Skills

T.W. Arnold

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It is increasingly common to see lawyers and others holding themselves out as family law mediators. At present there are no licensing requirements – at least in California, and there are no mandatory ethical guidelines, and there is no required course of study or continuing education, in order for people to call themselves mediators. This is one reason why I list all my continuing education on my web based profile.  Divorce mediation is in its open frontier stage of development. To be a family law mediator, for instance, one need have no formal training in matrimonial law or in the mental health sciences. This is equally true of mediators in all other fields.

This creates a dilemma: On the one hand, the family law adversarial court system is horribly ineffective and cold. Any way of avoiding it is, generally speaking, a valuable alternative. On the other hand, even well intended mediators can cause great damage to people’s financial and emotional lives if they lack the passion to obtain the level of training that will transform them from being apprentices to masterful technicians.

Family Law and Divorce Mediators, in particular, need to be sensitive to the fact that mediation participants uniformly begin the process of ending their relationships in a state of emotional and economic crisis. For many people the experience of divorce is one of the most difficult and traumatic of events that they will ever encounter. With 50% of first marriages and 65% of second marriages in this country ending in divorce, it is also one of the most common. Research indicates that it can take two or more years for people’s lives to normalize after a breakup, and that court litigation can extend that recovery time significantly. People commonly experience fear, anxiety, confusion, anger, and helplessness with varying intensities at various times. The failure of mediators to recognize the mediation participant’s experience and so to skillfully manage these feelings and to apply a solutions focused approach to resolving legal disputes can seriously impede a person's wellbeing and functioning within their families, at work, and in social relationships.

Emotional difficulties emerge around all kinds of legal. Mental Health Professionals have long observed that the crisis experience of people in divorce ranks at the top of the subjective Social Readjustment Rating Scales, second only to death of a spouse; indeed, the consequences of divorce may be more debilitating than the threat of a jail term or the death of a close family member. The experience of separating couples has profound implications for effective mediating.

Mediators are front line responders to crisis, but those with inadequate training don't understand this role because without formal education at best they bump into this reality but are at some loss to know what to do with it. Some have only a small interest in dealing with their mediation participant's emotions; this can be equally true of lawyers who have turned themselves into mediators just by changing hats. It is not necessarily their fault, however. Until recently almost no law schools taught fledging attorneys anything learned in the mental health sciences. Many lawyers today remain widely ignorant and disinterested in holistic interventions to help their mediation participants. However, most lawyers who have decided to incorporate mediation into their practices recognize the needs to gather new training. And all mediation training encompasses methods for validating and dealing with crisis.

Mediators and their staff have frequent contact with individuals in crisis in family law settings. By recognizing and defusing intense feelings, points of view, and situations, they can help mediation participants clarify priorities, link to other helping resources, and both mediators and the parties can become more efficient and goal oriented.

In considering the role of attorneys, scholars and counselors have suggested that it properly includes empathy and guidance, resembling what crisis workers call "psychological first aid." A three-step process has been designed to help attorneys and mediators to facilitate disclosure of relevant information in order to formulate a strategy for providing help to the mediation participants. These include:
  • Encouraging the mediation participant to express concerns and emotional reactions (this assists the mediation participant in describing the situation).
  • Thorough empathetic listening enables mediators to help mediation participants acknowledge emotions.
  • After this, the mediator may begin to develop and verify problem-solving theories based upon what has been learned.
  • It is essential that mediators help evaluate alternatives in dealing with the problem, and in order to accomplish this, they need to actively listen and respond to these feelings rather than focusing merely upon the facts. The mediator’s role includes establishing rapport (support must be developed and feelings explored before any real progress can be made). In order to handle cases efficiently, mediators need to understand the motives, personality structure, and unconscious thoughts of both parties in order to 'expose' the unconscious material from what appears to be a confused mediation participant.

    It is both practical and efficient in the long run to deal directly with the emotions that the mediation participant bring into the mediation hall. Approaches developed in crisis intervention counseling include:

    • Communicating effective concern

    • Allowing the mediation participants to express feelings

    • Sometimes exploring the precipitating event (that led to the breakup)

    • Examining past coping efforts to similar problems

    • Focusing on the immediate problem

    • Helping the mediation participants develop a cognitive understanding of the problem

    • Seeking practical solutions

    • Structuring a plan for action

    • Making appropriate referrals to mental health providers and others Psychological First Aid in the Mediation Orientation Session In order to make psychological contact with mediation participants:

    • Both facts and feelings need to be addressed

    • If feelings are ignored, it is very likely that the mediation participant will present facts poorly.

    • Mediation participants in distress convey what they feel in What they say

    o How they act
    o What they do Mediators should recognize the feelings verbally and then give the mediation participant the opportunity to respond. 

Exploring Dimensions of the Problem

While listening we should consider how the event might have disrupted our mediation participant’s life and goals. Mediators should listen to what the event (i.e., divorce, custody, move-away) means to the mediation participant. We should consider destructive propensities on the part of the mediation participant in response to the crisis. 

Examining Possible Solutions

The simple fact is that mediation participants who seeks out mediators are attempting to cope with the crisis, a powerful first step. Mediators need to know about available community resources (clergy, shelters, self-help groups, therapists). Because any given solution can seem to make sense at one moment or another, the lawyer should evaluate with the mediation participant different possible solutions.

Legal solutions are likely to have their intended effect only if the mediation participant’s needs are clearly understood and the mediation participant is motivated to cooperate with the mediation process and the other party. Understanding the crisis of divorce and relationship transition is an important threshold tool for serving mediation participants skillfully.