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Concepts of neutrality in family mediation: Contexts, ethics, influence, and transformative process

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Abstract

Mediators teach new trainees that the process of mediation requires impartiality and neutrality, but in some contexts the actual practice of mediation does not seem to be as neutral as stated. New concepts in the field, such as that of transformational rather than problem-solving approaches, require us to look again at the concepts of neutrality. Whether or not a mediator will use certain techniques or modes, and how this relates to the level of emotions that are dealt with during the mediation, will depend on not only the model the mediator uses but also on the mediator's concept of what constitutes undue influence, impartiality, and neutrality. In this article, the author sorts out the terminology and the historical basis for our concepts of neutrality and relates this to the other issues that affect mediators. She advances the idea that neutrality needs to be seen on a continuum and that ethical practice of neutrality may vary depending on the context of the dispute and the mandate given by the participants.

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... ne the role of a mediator as "neutral facilitator," and it is purported to be the clients who determine the terms of the final agreements. Others argue, however, that the "neutral facilitator" position is at best difficult to sustain and, under most circumstances, unreasonable to strive for (Bernard, Folger, Weingarten, & Sumeta, 1984;Haynes, 1981;A. Taylor, 1997). ...
... Interestingly, A. Taylor then goes on to define ethical practices along a continuum from "strict" to "expanded" neutrality (A. Taylor, 1997). While the "strict" neutrality anchor represents mediators who do not balance power, who do not use private caucuses with individual clients to deal with emotional or intrapersonal conflict, and who stay mainly within a narrow definition of neutrality, the "expanded" neutrality anchor includes mediators who actively use power-balancing techniques, intervene to help clients bargain, and use private caucuses with individual clients to strategize and train a client to be a better negotiator and allow the client to vent emotions (A. Taylor, 1997). ...
... While the "strict" neutrality anchor represents mediators who do not balance power, who do not use private caucuses with individual clients to deal with emotional or intrapersonal conflict, and who stay mainly within a narrow definition of neutrality, the "expanded" neutrality anchor includes mediators who actively use power-balancing techniques, intervene to help clients bargain, and use private caucuses with individual clients to strategize and train a client to be a better negotiator and allow the client to vent emotions (A. Taylor, 1997). The use of the term "expanded" neutrality to define this second anchor point epitomizes the current conundrum of defining acceptable mediator practices, while still using the word neutrality as a descriptor. ...
Article
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Because of the many problems associated with litigating divorce disputes, mediation has been proposed as an alternative. Its proponents, claiming wide-ranging benefits for both the litigants and the legal system, have had tremendous success in advancing mediation in social policy. This article critically assesses the validity of these claimed benefits. The article first considers the role of pro se representation and its potential consequences for evaluating divorce mediation because of the increased use of pro se representation in these cases. The article then articulates the goals attributed to the mediation procedure and its clients, identifies the behavioral assumptions underlying those goals, and critically reviews the social science research and theory that have directly tested the validity of the goals and assumptions or are indirectly relevant to the analysis (B. D. Sales, 1983). It is concluded that the goals of divorce mediation may have been and may be overly optimistic. The implications of these findings for mediation practice and policy are considered.
... 271-301 and 207-230). Although the ethical value of mediator neutrality has been criticized, as theoretical and practical literature has demonstrated (Rifkin et al. 1991, Gibson et al. 1996, Taylor 1997, Cohen et al. 1999, Field 2000, Garcia et al. 2003, Mayer 2004, Wing 2009, Izumi 2010, Dyck 2010, Waldman 2011, Bailey 2014, some authors have clarified that equidistance and impartiality are the necessary conditions to achieve neutrality (Mayer 2004, Wing 2009). In fact, Wing (2009) explains that "impartiality is the condition in which a mediator is not taking sides regarding the topic under dispute or the content of any potential agreement, and equidistance is the condition of being equally removed from and remaining unbiased toward each party" (Wing 2009, p. 390). ...
... These shared ethical principles may be found throughout the extensive literature on mediation, describing its philosophy and morality (Gibson 1999, Waldman 2011, Shapira 2016, theory and common practices (Lande 2000, Wall et al. 2001, Boulle and Nesic 2010, Zariski 2010, Wilson 2010, Wall and Kressel 2012, as in the formal codes of conduct for mediators (Bishop 1984, Cooks and Hale 1994, Taylor 1997, Wilson 2010, Menkel-Meadow 2014, Shapira 2016. ...
Article
On 27 and 28 April 2017, the International Institute for the Sociology of Law held a workshop under the theme The Institutionalization of Mediation: Potentialities and Risks. The scientific coordinators of this initiative promoted a structured discussion to identify the risks and potentialities of institutionalization to further develop mediation in the region. This article intends to review some literature supporting the subject of discussions, and to report the intense final discussion within the group of 27 mediation experts (from Germany, Belgium, France, Spain and Portugal). In these final reflections, we do not want to provide definitive answers to burning questions, but we hope to shed a light on the crucial dilemmas as they were discussed in a world-café-like workshop at the end of the meeting. Some limitations and future directions are discussed in light of participatory methods and governance innovation. El 27 y 28 de abril de 2017, el Instituto Internacional de Sociología Jurídica organizó un taller sobre el tema La institucionalización de la mediación: potencialidades y riesgos. Los coordinadores científicos de esta iniciativa promovieron una discusión estructurada para identificar los riesgos y potencialidades de la institucionalización para desarrollar aún más la mediación en la región, tema de las discusiones, y para informar la intensa discusión final dentro del grupo de 27 expertos en mediación (de Alemania, Bélgica, Francia, España y Portugal). En estas reflexiones finales, no queremos dar respuestas definitivas a preguntas candentes, pero esperamos arrojar luz sobre los dilemas cruciales tal como fueron discutidos en un taller al estilo de un café mundial al final de la reunión. Las limitaciones y las direcciones futuras se discuten a la luz de los métodos participativos y la innovación de la gobernanza.
... This blending of models presents a dilemma in that one enduring principle or aspiration of a mediator is neutrality and fairness Taylor, 1997). Another difficulty is that when the mediator immediately ''shifts'' roles Humanistic Approach to Child Custody Mediation 47 from mediator (oftentimes immediately in the session) to acting as a custody evaluator, that mediator must offer a parenting plan recommendation to the bench officer based upon his or her impressions from the mediation session. ...
... The Possibility of Mediator and Family Court Professional Bias Taylor (1997) provided a critique of the construct of neutrality in the mediation session. She discussed the idea of neutrality in the context of the model of mediation in the process of negotiations. ...
Article
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In this article, the authors briefly describe the origins of divorce mediation and review several recognized models of practice. We highlight the lack of a universally accepted model of mediation in the scientific literature and how this creates confusion for practical application of these models for use in various contexts, such as the private sector or government setting. The importance of practitioners employing the use of a clearly articulated model of mediation based upon a coherent theoretical underpinning is presented. The model proposes that the context of the mediation should prescribe the model of mediation used. A humanistic phenomenological model of mediation is presented for use in at-court mediation milieus.
... Thus, mediators have several ethical dilemmas to resolve. Although we know that mediators strive to maintain impartiality and neutrality, many practitioners believe that it is impossible to attain complete impartiality, neutrality, or lack of bias when working with people (Taylor 1997). Regehr (1994) points out that the bias of mediators appears to have a large impact on the decisions reached by parents. ...
... In its purest form, mediation is expected to be a neutral, impartial, and non-biased process; however, scholars and practitioners alike recognize that the mediator will have subjectivity and that subjectivity can influence the decision of the parents (Regehr 1994;Taylor 1997). To compensate for a natural tendency to favor the aligned parent, mediators must be well trained in detection, causation, underlying motives, and common patterns of deception that may be employed by the family members (including the children). ...
Article
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Parental alienation syndrome (PAS), a term that originated in the mid-1980s, refers to a disturbance in which children are preoccupied with viewing one parent as all good and the other parent as all bad. Conscious or unconscious words and actions of custodial parents cause the child(ren) to align with them in rejection of noncustodial parents during divorce or custody disputes. Issues of concern for mediators include detection of PAS and an understanding of appropriate remedial plans that will allow the child to restore his or her relationship with the noncustodial parent. An area of growing demand and concern for family mediators is in the minefields of child custody litigation. With no-fault divorce, and a standard for determining custody in light of the child's best interests, judges are besieged with a backlog of disputed custody cases without clear and concrete guidelines to follow in deciding whether to favor the mother or the father. Many experts in family law — from both the legal and mental health arenas — have observed an increase in deceptive and manipulative tactics used by divorcing couples. This article looks at parental alienation syndrome (PAS), which is a complex manifestation of mental and emotional abuse resulting from conflicted parents fighting for custody. Recommendations are given for a model that could be employed by family mediators to ensure that families suffering from PAS receive prompt and effective intervention.
... Alors, les médiateurs ont plusieurs dilemmes éthiques à résoudre. Bien que nous sachions que les médiateurs s'efforcent de maintenir leur impartialité et leur neutralité, beaucoup de praticiens pensent qu'il est impossible d'atteindre une complète impartialité, neutralité ou absence de parti pris lorsque l'on travaille avec des personnes (Taylor 1997). Regehr (1994) fait remarquer que le parti pris des médiateurs semble avoir un large impact sur les décisions prises par les parents. ...
... Dans sa forme puriste, la médiation doit être un processus neutre, impartial et sans parti pris ; cependant les académiciens et les praticiens reconnaissent eux-mêmes que le médiateur sera subjectif et que cette subjectivité peut influencer la décision des parents (Regehr 1994;Taylor 1997). Pour compenser cette tendance naturelle à favoriser le parent aligné, les médiateurs doivent être bien formés à la détection, les causes, les motifs sous-jacents et les schémas communs de tromperie qui peuvent être employés par les membres de la famille (y compris les enfants). ...
Article
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Le Syndrome d'Aliénation Parentale (PAS), terme dont l 'origine remonte a u milieu d es années 80, fait référence à un trouble concernant les enfants qui les fait considérer l'un de leur parent comme tout bon et l'autre comme tout mauvais. Des paroles et des actions, conscientes ou inconscientes des parents gardiens font que l'(es) enfant(s) s'aligne(nt) sur leur r ejet du parent non gardien p endant l e divorce ou les querelles concernant l a garde. Les points qui intéressent l es médiateurs s ont entre autres, la détection du PAS et une c ompréhension d e plans appropriés pour y remédier et qui permettront à l'enfant de restaurer sa relation avec le parent non gardien. Une demande et un intérêt croissants pour des médiateurs familiaux sont dans les champs de mine des litiges concernant la garde des enfants. Avec la suppression des divorces pour faute et un standard pour déterminer la garde à la lumière du meilleur intérêt de l'enfant, les juges sont assaillis par des dossiers s'accumulant sur des affaires de garde sans lignes de conduite claires et concrètes à suivre pour décider en faveur de la mère ou du père. Beaucoup d'experts en droit familial - que ce soit du domaine légal ou de la santé mentale - ont observé une augmentation des tactiques trompeuses et manipulatrices utilisée par les couples en cours de divorce. Cet article é tudie le syndrome d'aliénation p arentale (PAS), qu i est une manifestation complexe d'abus mental et émotionnel résultant de parents en conflit se battant pour la garde. Les recommandations sont données pour tenir lieu de modèle qui pourrait être employé par les médiateurs familiaux pour s'assurer que les familles s ouffrant du PAS bénéficient d'une intervention rapide et efficace.
... Mediators have long acknowledged the contextual nature of mediation practice and the variable challenges it throws up, as well as expressing frustration with the idea of neutrality and its failure to provide guidance about how to deal with the challenges of practice (Taylor, 1997;Solstad, 1999). Maximising party control-an emphasis on consensuality rather then neutrality-provides a practical standard against which to make judgments. ...
... The method of rethinking the mediator's role outlined above has extensive implications for how issues of power are recognised and handled in mediation, If neutrality no longer conceals the operation of power in mediation the debates and discussions about power and about the place of mediation in relation to issues of social justice come to the fore for development and discussion (Taylor, 1997;McCormick, 1997). ...
Article
The neutrality of a third party who decides or mediates disputes is central to our ideas of fairness and justice in western liberal democracies. The focus of this article is on neutrality in mediation. It argues that neutrality is even more important to the legitimacy of mediation than it is to the legitimacy of adjudication. But feminist and critical theories have demonstrated the impossibility of neutrality. Further, it is demonstrably absent in mediation practice and it conceals the operation of power in mediation. These flaws and contradictions of neutrality open mediation to constant destabilising internal dissent and external critique. Mediators face a conundrum - they cannot 'do' neutrality, nor can they do without it. This article suggests a new approach to neutrality in mediation, which makes sense in practice and in theory. It provides for the inevitable situatedness of mediators and suggests principles to regulate their input into mediation. It suggests a method of practice that requires (rather than outlaws) attention to power relationships. These recommendations have implication for mediator practice, training, ethics, supervision and continuing education. Although directed to mediation, may of the arguments might fruitfully also be applied to adjudication.
... Consequently, multipartiality may be more influenced by contextual characteristics such as the conflict issue, parties' characteristics and/or specific group or relational dynamics. In conflicts where parties hold imbalanced powers, the peacemaker needs to give more time or attention to one of the parties (Taylor, 1997;Astor, 2007). Therefore, peacemaking in such occasions may be (also perceived as) less multipartial for the sake of the interest of both parties. ...
Article
Purpose This study aims to investigate the relationship between personality, gender and interpersonal peacemaking. Peacemaking is considered as voluntary behavior of team members to help conflicting peers in an impartial way, to find an amicable solution. This study tests the relation between the Big Five personality dimensions, gender and five different components of interpersonal peacemaking (general involvement in peacemaking, multipartiality, focus of finding solutions, emotional support and the use of humor). Design/methodology/approach In total, 503 participants filled out a survey assessing their personality and peacemaking behavior at work. To test the hypotheses, this study conducted structural equation modeling in AMOS 22.0. Findings In line with expectations, openness, extraversion and agreeableness related positively to most peacemaking components, while conscientiousness and neuroticism related negatively to the use of humor and peacemakers’ multipartiality, respectively; comparing men and women, women engage more often in peacemaking in general and in emotional support, and use less humor than men. Results also showed that these gender differences are partially mediated by agreeableness being higher for women. Originality/value To the best of the authors’ knowledge, this is one of the first studies exploring the relationship between personality (Big Five), gender and different aspects of interpersonal peacemaking. Peacemaking is an important, however understudied, behavior in teams and part of OCB. The promotion of peacemaking contributes to team effectiveness.
... Es decir, se propone como una estrategia preventiva al promover espacios de encuentro entre las partes, reduciendo la posibilidad de que los conflictos se escalen o no se resuelvan adecuadamente. Taylor (1997) agrupa las cuatro modalidades de mediación según un estudio de la década de los 80 por Becker-Haven. La elección de elegir un tipo de mediación es variable según las circunstancias y el tipo de conflicto: a) Modalidad educativa. ...
Article
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En las organizaciones escolares pueden suceder distintas modalidades del conflicto, llegando a generar incluso, actos violentos. Es por ello, que el presente estudio tiene como finalidad presentar la mediación como un tipo de herramienta eficaz para los educadores sociales y todos aquellos profesionales involucrados en la organización escolar, que tiene como fin la gestión pacífica y alternativa del conflicto generado en la escuela, entiendo el conflicto como un fenómeno común y no necesariamente negativo, sino dependiente de las partes y de la forma resolutoria del mismo. Palabras clave: Mediación, conflictos, escuela, profesionales del ámbito social. Fecha de recepción: 27-11-12. Fecha de aceptación: 15-12-12 1. Introducción. En la actualidad, se advierte la necesidad de trabajar sobre nuevas estrategias educativas que atiendan a la creciente conflictividad en la convivencia escolar. Los múltiples estudios y noticias de prensa son reflejos, de la carencia de una educación en la paz, de la inexistencia de patrones en la resolución adecuada de las disputas, y en demasiadas
... A Mediação Familiar pode ainda ser defi nida como um acompanhamento das partes envolvidas no confl ito por um terceiro, neutro, imparcial e devidamente treinado (Barbosa, 2003;Navarro, 2007), o qual proporciona espaço para o componente emocional do litígio. Taylor (1997), no entanto, afi rma que a neutralidade do mediador dependerá do contexto da mediação e do confl ito mediado por ele. Desta forma, é fundamental que os mediadores tenham conhecimento de seus preconceitos e reações pessoais a fi m de saberem lidar com suas questões no momento da mediação, preservando a sua imparcialidade no processo. ...
Article
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This study presents the results of the practice of family mediation developed in a Center for Judicial Practice of a public university, through an extension project. The objective is to share the experience of a psychological service implemented into an eminently legal space. The understanding of the subjective aspects involved in family disputes, namely, separation / divorce, custody, visitation and alimony were the focus of mediations conducted, which aimed to minimize the suffering and seek the understanding between the parties involved. The results indicate the importance of integrating psychology with the conflicts of family, as well as discussion about the different forms of custody. We highlight the concerns related to the exercise of parenting when the marital relationship ends. Finally, we stress the empowerment of the parties in resolving their conflicts, one of the purposes of family mediation.
... Definitions of the professional neutral and ethical standards for mediators have been developed by such groups as the Academy of Family Mediators (AFM, 1985), the Association of Family and Conciliation Courts (AFCC, 1989), the American Arbitration Association (AAA, 1994), and the Society of Professionals in Dispute Resolution (SPIDR, 1995). Neutrality as defined by these organizations and their members means scrupulously giving each disputant equal attention and doing exactly what is needed by each disputant (Taylor, 1997). ...
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The subject of this article is neutrality in the role of the family mediator. The question it addresses is whether spouses in a conflict situation on the interpersonal level are capable of cooperating on the parental level to reach sensible decisions as to their children's welfare. The article discusses the dilemma of the mediator as to whether, and how, to intervene in the couple's parental decisions regarding their children's welfare; it ends with a case study and conclusions.
Article
This paper is based on the analysis of the importance given to neutrality in the intervention of mediators, with special emphasis on the legislation and codes of conduct followed by mediators in Spain and Chile. For this purpose, a review of the literature on neutrality has been carried out using various scientific databases and an analysis of the legislation in these countries. The aim of this analysis was to highlight the research carried out by mediation professionals on this issue and to propose possible solutions. Among the results achieved is the affirmation that neutrality is in the mediation process and not in the mediator. This reality is not reflected in ethical codes of conduct or in legislation. Therefore, it is proposed the need to elaborate a universal and accredited code of ethics, which would help to consolidate the current polyphony of voices on mediator neutrality in the countries where mediation is used. As mediation as a profession becomes more and more established, it is essential that the principle of neutrality be understood unambiguously. In contrast to the rules that appear in current legislation and in certain codes of conduct, mediators should not be subject to the constraints of achieving personal neutrality.
Book
Many aspects relating to the conduct of mediation are left to mediator choice, but mediators often lack adequate guidance on how their discretion ought to be exercised. In this book, Omer Shapira identifies the ethical norms that govern mediators' conduct. Adopting a professional ethics perspective on the basis of role-morality and applying it to a core definition of mediators' role, Shapira argues that all mediators are placed in ethical relationships with mediation parties, the mediation profession, the public and their employers. or principals that produce ethical obligations. The book goes on to explore the legitimate expectations of these groups and analyzes existing codes of conduct for mediators. Shapira constructs a theory of mediators' ethics that produces a proposed model code of conduct for mediators - a detailed set of norms of mediators' ethics that can be rationally justified and defended with regard to mediators at large.
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This study presents the results of the practice of family mediation developed in a Center for Judicial Practice of a public university, through an extension project. The objective is to share the experience of a psychological service implemented into an eminently legal space. The understanding of the subjective aspects involved in family disputes, namely, separation / divorce, custody, visitation and alimony were the focus of mediations conducted, which aimed to minimize the suffering and seek the understanding between the parties involved. The results indicate the importance of integrating psychology with the conflicts of family, as well as discussion about the different forms of custody. We highlight the concerns related to the exercise of parenting when the marital relationship ends. Finally, we stress the empowerment of the parties in resolving their conflicts, one of the purposes of family mediation.
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El articulo presenta el desarrollo del proceso de mediacion en la intervencion del conflicto. En un primer apartado se define el concepto de mediacion y sus caracteristicas. Los apartados segundo y tercero recogen los aspectos relativos a las modalidades de mediacion y su transformacion ante el conflicto. Finalmente, se muestran las aportaciones de la mediacion en el ambito familiar, escolar y judicial entre otros.
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Mediation as the intervention of choice to resolve identity conflicts assumes that human societies have found their own ways and means to avert and/or to resolve conflicts. The existing body of literature claims that the cause of conflicts and the mechanisms for resolution are deeply rooted in the culture and history of every society. Conflict management is not a phenomenon exclusive to the West. The Panchayat in India (see Baxi & Galanter 1979; Hayden 1984; Moore 1985), the mediation committees in China (Clark 1989; see Li 1978), the Jirga in Afghanistan (see Carter & Connor 1989; Elphinstone 1992) and the Katarungang Pambarangay community mediation in the Philippines (see Pe & Tadiar 1988; Penetrante 2010) are traditional forms of conflict resolution that are embedded in modern institutions.
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This review article focuses on the claims made by the proponents of divorce mediation regarding the efficiency, accessibility, relevance and self-empowering potential of this dispute-resolution technique in comparison to litigation. The review also considers criticisms that have been leveled at divorce mediation: that efficiency is purchased at the price of fairness; that accessibility comes at the expense of quality; that personal relevance implies poor outcomes for the weaker spouse; that pursuit of self-empowerment detracts from the primary goal of achieving a satisfactory and durable settlement. Based on existing empirical research on the outcomes of mediation, it is concluded that this approach is superior to litigation. Current challenges to mediation are identified and discussed.
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Ending identity conflicts through negotiated agreements is an intractable process that is embedded complexly in the nation-building process. Ariel Hernandez looks on the complexity of the nation-building process in the Philippines and how its social and political context constrains the achievement of a peace agreement that would withhold new challenges as the process unfolds. Mediation as one of the possible modes of intervention to resolve identity conflicts is taken as the self-evident instrument to end the 40 year old conflict between the Filipino society at large and the Bangsamoro. The analysis confirms that mediation and other types of intervention are contributing to the intractability of identity conflicts by bringing in further complexities in the negotiation process. The conceptualization of "stumbling blocks" may provide knowledge based resources to develop strategies to "facilitate" the mediation process that allows negotiating parties to cope with the complexity of the bargaining table.
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This thesis addresses the question: how do individuals in a conflict society engage in peaceful dispute resolution through mediation? It provides a close look at Israeli society, in which people face daily conflicts. These include confrontations on many levels: the national, such as wars and terror attacks; the social, such as ethnic, religious and economic tensions; and the personal level, whereby the number of lawyers and legal claims per capita are among the highest in the world. The magnitude, pervasiveness, and often existential nature of these conflicts have led sociologists to label Israel a ‘conflict society’. Mediation practice came into this society and challenged the existing ethos and norms by proposing a discourse of dialogue and cooperation. The thesis focuses on the meeting point that mediation engenders between narratives of conflict, which have developed in this environment, and the mediation processes, which set out to achieve a collaborative discourse and mutual recognition. The fieldwork, forming the core of the thesis, consists of the observation of supervised mediation processes of civil disputes in two leading mediation centres, and interviews with professionals and key figures in the discipline. The wide variety of voices of a broad range of interviewees and many different parties provide for rich, qualitative data. The use of the narrative‐ethnographic approach in observing mediation processes helps identify key themes in participantsʹ narratives. The subsequent analysis leads to the insight that these mediation processes reflect, in a subtle way, the narratives, beliefs and needs of individuals in a conflict society. The findings from this study indicate that perceptions of life in a conflict society are clearly manifested through mediation processes. These place obstacles and inhibit the attainment of agreements. Yet, surprisingly, some of the findings also demonstrate an aversion to conflict and a well‐expressed desire to maintain communication and to achieve peaceful resolution.
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Purpose – The purpose of this paper is to provide a comprehensive review of the neutrality literature and suggests areas ripe for future research. Design/methodology/approach – The authors reviewed journal articles on the topic of neutrality in mediation, which included theoretical viewpoints and empirical research on practicing mediators’ understanding of neutrality. Findings – The review of literature revealed that party perspectives are largely missing from current neutrality literature. Two potential concepts emerged from the authors' review of literature that could potentially influence parties’ attributions of mediator neutrality: symmetry and transparency. Symmetry refers to the equal treatment of parties, whereas transparency refers to providing an explanation of past or future behavior. Research on whether symmetry and transparency are key influences on party assessment of mediator neutrality could make a significant contribution to the field. Research limitations/implications – The authors call on researchers with diverse methodological perspectives to examine, from the party’s perspective, important questions regarding the meaning of neutrality, mediator strategies to successfully enact neutrality and the impact of neutrality on mediation outcomes. Originality/value – Neutrality is arguably one of the most important concepts to the mediation field. Despite its significance to the field, only limited research has been conducted to better understand how neutrality is enacted in practice. This paper provides a comprehensive review of the literature and provides a launching point for future research.
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With over 1 million children in the United States affected by parental divorce or separation each year, there is interest in interventions to mitigate the potential negative consequences of divorce on children. Family mediation has been widely heralded as a better solution than litigation; however, mediation does not work for all families. One proposed improvement involves bringing the child's perspective to mediation, to motivate parents to create better agreements. In this randomized controlled trial, we compared new child-informed forms of mediation against a mediation-as-usual (MAU) control condition. In child-focused (CF) mediation, parents are presented with general information about children and divorce; in child-inclusive (CI) mediation, the child(ren) are interviewed and parents are provided with feedback about their specific case. Given the similar focus and goals of CF and CI, main study analyses compared a combined CF and CI group (n = 47) to 22 MAU cases. The CF and CI interventions had a positive effect on mediation outcomes relative to MAU (e.g., parents were more likely to report learning something useful, and mediators wanted their cases to be CF and CI). Cases in CF and CI reached comparable rates of agreement as cases in MAU, but CF and CI agreements included more parenting time for nonresidential parents, and were more likely to include provisions for coparental communication and provisions assumed to be better for child outcomes. Study results are encouraging and should provide support for wider program evaluation efforts to continue refining the CI and CF interventions. (PsycINFO Database Record (c) 2013 APA, all rights reserved)
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This study examines conversational interaction in order to describe the conversational features of mediator neutrality in a court-based community mediation program. Data for the study were video recordings of actual mediation sessions with participants who were volunteer mediators and disputants who filed small claims cases. Conversation methods for maintaining neutrality included self-labeling, unbiased paraphrasing, perspective display invitations, footing, and replies to disputant information seeking attempts. These conversational structures display neutrality in that they neither affiliate nor disaffiliate with either disputant. Through an examination of mediator neutrality, this work contributes in potentially important ways to the pragmatics literature and to theorizing about neutrality by examining neutrality as an interactive phenomenon.
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Because of the many problems associated with litigating divorce disputes, mediation has been proposed as an alternative. Its proponents, claiming wide-ranging benefits for both the litigants and the legal system, have had tremendous success in advancing mediation in social policy. This article critically assesses the validity of these claimed benefits. The article first considers the role of pro se representation and its potential consequences for evaluating divorce mediation because of the increased use of pro se representation in these cases. The article then articulates the goals attributed to the mediation procedure and its clients, identifies the behavioral assumptions underlying those goals, and critically reviews the social science research and theory that have directly tested the validity of the goals and assumptions or are indirectly relevant to the analysis (B. D. Sales, 1983). It is concluded that the goals of divorce mediation may have been and may be overly optimistic. The implications of these findings for mediation practice and policy are considered. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
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This study employs conversation analysis as a method for examining conversational footing in order to achieve mediator neutrality in a court-sanctioned mediation program. Data for the study are video recordings of actual mediation sessions. Participants include volunteer mediators and disputants who filed small claims cases at a county justice court. As first described by Goffman, conversational footing describes the various degrees of participation that interactants can have in relation to their own remarks.
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Within the context of family law mediation, the author explores the issue of giving advice and performing related interventions that mask a similar intention. It does so by examining some codes of conduct and professional standards from Australia, Canada, and the United States and also by drawing on recent literature concerning mediator intervention, particularly on the subjects of impartiality and neutrality, reframing, mediator pressure, ethics, and the concept of the mediator as “folkloric trickster.” The author concludes that mediator intervention (such as creating doubt, reframing, and applying pressure to respond to a mediators concern) and selective facilitation obviously do not fit the definition of giving advice in the narrow sense by recommending a specific course of action. Nevertheless, they also are not simply an intervention of process (rather than one of content), for they are intended to redirect a party's attention to a hitherto unthought of or unarticulated substantive possibility. Thus the mediator may be seen, in broad terms, as an advocate for fair and effective use of the process of mediation to safeguard or enhance party self determination. To forward this aim, he or she may use an intervention intended to impart advice while still respecting party autonomy.
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Mediator intervention in the power relationships of disputants often leads to claims that, in practice, mediators are breaching their theoretically "neutral" status in the mediation. This article contends that mediator intervention in the power relations of negotiating disputants should not be seen as being paradoxical to the mediator’s neutral role. It argues that the meaning attributed to “neutrality” is ultimately dependent upon the individual parties and the particular circumstances of each dispute and therefore cannot be perceived in absolute terms. The result of accepting the inherent "situatedness" of the concept of neutrality would be to allow multiple meanings to be ascribed to the state of being neutral, thus opening up a space for affirmative mediator intervention to prevent unfair outcomes without mediators necessarily renouncing their neutral role in the process.
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Extract: The idea of a neutral mediator persists as a critical concept in how we define the mediation process, and yet it has long been acknowledged as a controversial and flawed notion. Efforts to address the theoretical and practical dilemmas that neutrality creates have failed to make a lasting impression. Neutrality remains an unsatisfactory concept that mediation cannot seem to do without. This article argues that a possible way forward for the mediation community can be found in enforceable professional ethics for mediators. This position is grounded in the argument that the legitimacy of mediation should rest on a strong ethical paradigm, rather than on an unworkable concept such as mediator neutrality.
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L'article presenta el desenvolupament del procés de mediació en la intervenció del conflicte. En un primer apartat es defineix el concepte de mediació i les seves característiques. Els apartats segon i tercer recullen els aspectes relatius a les modalitats de mediació i la seva transformació davant del conflicte. Finalment, es mostren les aportacions de la mediació en l'àmbit familiar, escolar i judicial, entre d'altres. The article presents the development of the mediation process in the intervention of the conflict. In a first section is defined the mediation concept and their characteristics. The sections second and third pick up the relative aspects to the mediation modalities and their transformation before the conflict. Finally, it is shown the contributions of the mediation in the family, school and judicial environment among others. El artículo presenta el desarrollo del proceso de mediación en la intervención del conflicto. En un primer apartado se define el concepto de mediación y sus características. Los apartados segundo y tercero recogen los aspectos relativos a las modalidades de mediación y su transformación ante el conflicto. Finalmente, se muestran las aportaciones de la mediación en el ámbito familiar, escolar y judicial entre otros.
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Mediation of child custody disputes is mandated in several states. Investigators have averred that victims of domestic violence (DV) are greatly disadvantaged in mediation. The present study empirically evaluated outcomes and found that mediators failed to recognize and report DV in 56.9% of the DV cases. The court's screening form failed to indicate DV in at least 14.7% of the violent cases. Mediation resulted in poor outcomes for DV victims in terms of protections, such as supervised visitation and protected child exchanges. Mediator capacity to focus on the child's best interest was called into question. Child custody mediation should not be mandated in cases of DV.
The Promise ofMediation: Responding to Confict Through Empower-ment and Recognition
  • R A B Bush
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Standards of Practice for Divorce Mediators Divorce Mediation: Theory and Practice
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Divorce Mediation in a Law Office Setting Divorce Mediation: Theovy and Practice An Analysis of Mediation Assumptions: Strategies to Help Medi-ators in Child Custody Cases
  • H M Elson
Elson, H. M. " Divorce Mediation in a Law Office Setting. " In J. Folberg and A. Milne (eds.), Divorce Mediation: Theovy and Practice. San Francisco. Jossey-Bass, 1988. Evans, W., and Havercamp, M. " An Analysis of Mediation Assumptions: Strategies to Help Medi-ators in Child Custody Cases. " Mediation Quarterly, 1994, 11 (31, 229-245.
The Case of Willie: Three Mediation Approaches
  • Academy of Family Mediators
Culturally Responsive Dispute Resolution for Latinos
  • State Justice Institute
Model Standards for Court Connected Mediators
  • Assocation of Family and Conciliation Courts
Mediator Emotional Awareness: Managing Emotions in Mediation
  • M A P Zaha