Mediation and shared parenting

Edward Kruk, Associate Professor of Social Work, University of British Columbia, believes that family mediators need to actively promote shared parenting as the best outcome for separated families.

It is now generally accepted that it is not divorce per se that results in the difficulties experienced by separated family members; rather, certain critical mediating factors stand between separation and post-divorce outcome for family members. These include the extent to which both of the parents and their children are able to maintain meaningful relationships, the level to which the parents are able to support each other in their continuing parental roles, and the extent to which informal social networks and formal judicial, educational, and social welfare institutions are supportive in regard to both. It may be argued that there is an implicit ethical responsibility for mediators and therapists to promote parenting agreements and influence settlements that take these factors into account.

Therapist-mediators with expertise in the expected effects of divorce on children and parents can be instrumental in helping parents to recognise the potential psychological, social and economic consequences of divorce and, on that foundation, promote arrangements conducive to children maintaining meaningful, positive post-divorce relationships with both parents within a non-conflictual atmosphere.

One of the most debated aspects of the role of mediators is the extent to which they should actively shape the outcome of the agreement--should they assume a neutral or a therapeutic/interventionist role? Neutral mediators seek to avoid influencing the outcome of the negotiations and accept any decision the parents agree on that is not obviously harmful to either. The therapeutic/interventionist mediator, on the other hand, is actively involved in shaping an agreement that includes those factors known to contribute to positive post-divorce outcomes.

In my view, mediation needs to include a much stronger educative and advocacy component, and to assume an affirmative stance in promoting and facilitating the development of cooperative shared parenting arrangements. Mediators are in a unique position to expand the range of possibilities available to divorcing families. A basic assumption of mediation should be that termination of a marriage necessitates a restructuring of family life that enables as many children as possible to have a meaningful and active relationship with both parents, free of inter-parental conflict. If mediation does not exercise its educative and advocacy function, stressing the desireability of active parenting by both parents, detailing the range of shared parenting possibilities open to families and, where appropriate, actively facilitating and working through the logistics of a shared parenting arrangement, it fails to live up to its true potential.

Mediators also need to pay greater attention to the durability of parenting agreements, and the need for parents to continue to improve their ability to cooperate and negotiate with each other after divorce. The challenges facing divorced co-parents are numerous; once in place, shared parenting requires an extremely high level of organisation, cooperation, and commitment. Therapist-mediators can play a key role in helping parents to meet these challenges; to add to its educative and advocacy function, mediation should also include a support and troubleshooting component, a period of follow-up to assist parents not only to share the parenting of their children, but to do so in a cooperative manner.

A Therapeutic / Interventionist Model of Family Mediation

Given the desirability of cooperative shared parenting as a post-divorce arrangement, the challenge is how to implement this new ideal as effectively and efficiently as possible. A therapeutic/interventionist approach to divorce mediation - as contrasted to the more structured, short-term, future-focused, and neutral mainstream model - may offer a means of doing so. Within such an approach, mediation is used to introduce the option of shared parenting as a viable structural alternative, reduce parents' anxiety about a living arrangement deviating from the norm, help parents work through the development of a shared parenting plan, and help them implement the plan in as cooperative a manner as possible. A "therapist-mediator" guides the process, which consists of five distinct yet overlapping phases:

To determine whether the parents are both ready to enter into shared parenting mediation, and whether shared parenting mediation is indicated. It is particularly critical to assess the nature of pre-divorce parent-child relationships, including the degree of involvement and sharing of parenting tasks and responsibilities within the marriage, competence in parenting, discipline methods used by each parent, the degree of attachment between each parent and the children, and the degree of influence each parent has in various areas related to children's growth and development. According to Gardner (1984), shared parenting is a viable option when three provisions are satisfied:

- both parents are capable and loving custodians; their levels of involvement with and attachment to their children are high, and they wish to continue their child care responsibilities;

- the parents have the potential to cooperate and communicate effectively in regard to parenting concerns;

- geographic distance and other logistical constraints are not excessive.

Where parents acknowledge the centrality of their children in their lives, and the importance of keeping children's interests at the forefront of their negotiations, the prognosis for shared parenting mediation is good. This is probably the therapist-mediator's most powerful lever in facilitating the parents' negotiations.

Here the therapist-mediator begins the process of helping the parents make an informed choice about the type of post-divorce parenting arrangement that is best for their children and themselves. This is accomplished by means of educating parents in regard to three major sets of issues: children's needs and interests in divorce, the divorce (and mediation) process, and effective communication and problem-solving skills.

The advocacy phase is essentially an extension of the education phase, with the therapist-mediator assuming a more affirmative stance with respect to establishing the "best interests of the child" as the objective criterion that will guide the parents' negotiations and determination of the post-separation parenting arrangement and, where appropriate, promoting a shared parenting arrangement as best meeting that criterion. The benefits of shared parenting are first examined from the point of view of children and then the parents. Specific information is given about the optimal types of shared parenting arrangements for children at different ages, and for families in different circumstances.

Before they enter the negotiation phase, it is important for parents to know that, as there is a wide range of family patterns and dynamics, they will be able to select from a range of shared parenting alternatives. Further, whatever shared parenting plan they formulate will not be irrevocable: they will need to consult each other about their children's changing needs at different ages and stages of development, and are likely to have to modify the arrangement several times during the forthcoming years.

The mediator facilitates the development of an individualised cooperative shared parenting plan, which outlines specific living arrangements, schedules, roles, and responsibilities. The feasibility of a shared parenting arrangement is examined from the children's and parents' perspectives, and practical needs and constraints in terms of day-to-day concerns and the realities of the entire family are considered. The goal is to help the parents design a shared parenting plan meeting not only their children's and their own needs and interests, but also their particular schedules and lifestyles. Mediation becomes a process of building on areas of agreement, and assisting in the negotiation of issues around which there is disagreement. Each parent will be expected to modify some of his or her own personal desires, on the basis of the children's needs, those of the other parent, and the everyday realities of everyone's lives.

The final stage focuses on the transition from parallel parenting to cooperative shared parenting. To this end, the therapist-mediator monitors the parents' progress and intervenes as needed, helping them work through conflict and reinforcing and consolidating the communication and problem-solving skills taught during the mediation process.

With adequate therapeutic support, the ideal of cooperative shared parenting could become a reality for a significant proportion of separated, divorced and remarried families. Such an outcome has largely eluded those practicing traditional approaches to dispute resolution in divorce, including mainstream models of mediation. When applied to the divorce arena, the mainstream model, with its highly structured and neutral orientation, is extremely limited in its potential: a pure form of mediation which is strictly rule-governed and limited to dispute settlement does not permit the wealth of data related to positive post-divorce outcomes to emerge and guide the mediation process; avoiding influencing the outcome of the negotiations at all costs does not allow for active intervention which may ultimately benefit family members.

A therapeutic/interventionist approach to family mediation offers an effective alternative to the mainstream mediation model, and may be the key in establishing cooperative shared parenting as the norm, rather than the exception, for divorced families. The model represents a radical alternative to traditional approaches: its goals are therapeutic (facilitating the adjustment to divorce for all family members, restructuring the parents' relationship, restructuring parent-child relationships, enhancing communication and problem-solving skills); the mediator's role is highly interventionist (influencing a settlement that is in the "most adequate" if not "best interests" of the child as well as fair to both parents); assessment and detailed history-taking with respect to existing co-parental and parent-child relationships are emphasised; and interventions are geared toward the promotion and facilitation of cooperative shared parenting after divorce. The mediation process is transformed into a longer-term therapetic endeavour, focused not only on the production of a shared parenting agreement, but on the durability of that agreement.

Mediation focused on the development of post-separation parenting plans requires a distinct approach; the neutral mainstream model, designed for use in vastly diverse arenas, has shown itself to be an unwieldy instrument in the realm of family transition attendant to divorce. The therapeutic/interventionist model is presented as an effective alternative, one that is ideally suited for use by family therapists working with families in transition and specifically designed toward the development of post-separation parenting plans, that operationalises the principle of shared parental responsibility underlying emerging developments in divorce law.

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