גישור גירושין-סקירת גורמים, קשיים, מכשולים, ונקודות מפנה - ד"ר אורנה כהן

Facilitating factors, difficulties, impediments, and turning points in divorce mediation

* Orna Cohen, Ph.D.
School of Social Work
Evans Mediation and Conflict Resolution Program
Tel-Aviv University, Israel

Abstract
Based on open-ended, face-to-face interviews with 14 clients in private divorce mediation, this study identified client perceptions of the factors that facilitate and impede reaching a mediated settlement, and of the difficulties and turning points in the process.

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The findings point to the key role of the mediators in the eyes of the clients and the many, sometimes contradictory, expectations of them, for structure and attention to practical details, on the one hand, and for attention to their emotions, on the other. The findings also highlight the many difficulties that clients experience in the process, as well as differences and confusions in their expectations of mediator neutrality. Implications for mediator training are discussed.

Introduction
Since its introduction as a means of reaching divorce settlements, mediation has become ever more widely used. It is often mandated by state statute or court rules; and, where not, is often chosen by divorcing couples seeking a presumably less costly, time-consuming, and contentious means of reaching a settlement.

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 Although it is recognized as a valuable tool in resolving even complex and emotionally-charged divorce disputes, very little of the voluminous research that has been conducted on mediation examines the process itself. Kelly’s. Kelly's (2004) observation that early research focused on settlement rates, time and cost efficacies, client satisfaction, and long-term impact on such things as compliance, parental communication, and psychological adjustment, applies to much of the later research as well.

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These matters were, and still are, studied as yardsticks of the success of mediation, as are the many comparisons between the outcomes of mediation and those of litigation.

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The little research that has been conducted on the mediation process itself tends to focus mostly on the mediator and on what makes for successful mediation. The simplest studies use questionnaires with closed-ended questions to query clients about their satisfaction, invite them to evaluate their mediators or the mediation process and outcomes, and to query mediators about their techniques.

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 The client questionnaires examine pre-determined variables, which include such things as the mediators’ affect (warmth, respect); professional abilities (e.g., sensitivity, listening, impartiality, making them feel safe); and helpfulness in such matters as keeping them focused on important issues, facilitating communication with their partners, making suggestions, coming up with a parenting plan, and others (Beck, Sales, & Emery, 2004; Beck, Sales, & Brucem ,2000; Deana, 2004; Kelly, 2004).

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 These studies have the advantage of large samples and the ability to provide information about effective and ineffective mediator behaviors and about the features and results of different types of mediation. They also make it possible to compare client satisfaction and mediation effectiveness with features of the client and of the mediation process.

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However, the client perceptions queried are limited to variables that the researchers consider important to reaching a mediated settlement, and do not tell us much about how clients themselves experience the process. Moreover, some of the authors of these studies themselves acknowledge that their methods are not the best means of learning about the mediation process (Irving & Benjamin, 1992; Jacobs & Aakhus, 2002).

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To better understand the mediation process, a number of researchers have employed one or another means of direct observation. All these studies were aimed at identifying mediator or client behaviors, in some cases, client behaviors associated with the effectiveness of the process.

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Slaikeu, Culler, Pearson and Thoennes (1985) analyzed audiotapes of single mediation sessions to measure the frequency of a range of pre-set communication behaviors on the part of mediators and clients in order to determine which were associated with the reaching of a settlement. Kressel and colleagues carried out two studies employing what they termed the case-study method to analyze custody and visitation mediation in a court setting.

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The first (Kressel, Frontera, Forlenza, & Wilcox, 1989) analyzed mediators’ written accounts of sessions and case conference protocols to learn about obstacles that certain clients posed to effective mediation, and about mediator strategies that were associated with effective and ineffective mediation.

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The second (Kressel, Frontera, Forlenza, Butler & Fish, 1994) examined protocols of closing case conferences and audio and video recordings of mediation sessions. Focusing on mediators’ behaviors, they identified two contrasting mediator styles, the settlement-oriented style (SOS) and the problem-solving style (PSS), and determined that the latter resulted in more frequent and enduring settlements.

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Gale, Mowery, Herrman, and Hollett (2002) examined the communication process in four scripted, actor-played, videotaped mediations. Both the actors and the researchers rated the effectiveness of the different mediations. Their ratings differed, raising questions about the researchers’ identification of the discourses that characterized the more effective and less effective mediations.

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The only study of which I am aware that queried clients using open questions is Tjersland’s (1999) examination of a mediation program in Norway. In addition to observing mediation sessions and interviewing mediators, Tjersland asked clients to describe what they found useful and what they were critical of in the mediation, and listed their answers.

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Checking their comments against observations of mediation sessions, Tjersland found that mediators with more satisfied clients enabled couples who wanted to try to understand the reasons for the divorce to do so and gave their clients more time to discuss how they would explain the divorce to the children. Like the other mentioned studies, however, Tjersland’s study does not actually explore or elaborate on the clients’ experience of the process.

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Moreover, to my knowledge, there is no published study to date of turning points in divorce and custody mediation. As defined by Olekalns and Smith (2005), a turning point is a discrete, identifiable event that changes the nature of the individuals’ interactions.

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A mediator’s ability to identify these events is important to enabling him to bring clients to experience them or to use them to help effect a breakthrough when clients reach them on their own. Yet almost all the literature on turning points is in the field of business negotiations (Druckman, 2004; Green & Wheeler, 2004; Olekalns & Smith, 2005).

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The only study of turning points in divorce mediation is an unpublished PhD dissertation by Blake (1999). Based on interviews with 20 mediators about their clients’ behaviors, Blake identified three categories of turning points, all referring to client behaviors, and then analyzed transcripts of mediation sessions to determine the association between those behaviors and dispute resolution. The omission of the clients themselves as sources of information is notable.

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The present study thus focuses on the clients' own voices. It is based on semi-structured interviews with 14 mediation clients, who were asked to tell about their experience of the mediation process and to identify its turning points.

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Their responses are given in some detail in order to convey the nuances of their experiences, the emotions they felt, and the multi-faceted and, in some cases, contradictory nature of their experiences and expectations. In the absence of a coherent theory explaining how mediation works, the aim of this study is to open what Benjamin and Irving (1995) term the "black box" of the mediation process to learn how clients actually experience the process it and to develop grounded insights into what can help them to reach a satisfactory mediated settlement.

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The study was carried out in Israel. Since the mediation process may be affected by the law (Stark & Standifer, 2001; Wall et al., 2001) , a few words are in order about family law in Israel. Persons in Israel may file for divorce in either a religious or a state court. Jewish religious law requires that for a divorce to be valid, the husband must give his wife a writ of divorce and she must accept it. Although the rulings of the religious courts are subject to the laws passed by Israel’s parliament, the religious courts are perceived as favoring the husband and the civil courts as favoring the wife. As a result, each member of the couple may rush to file first in a different court.

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Divorce and family mediation can be obtained either privately on a fee-for-service basis or through the no-cost Family Court Services that are attached to the family courts (Cohen, Dattner, & Luxenburg, 1996). Each family court in the country can refer disputants to Family Court Services for evaluation, counseling, and/or mediation. The referral, however, is not binding.

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All mediation in Israel is voluntary. In both the private and public forums, there are wide variations in the approaches used and in the number of mediation sessions. All divorce agreements, including those reached through mediation, must be approved by the court so as to ensure the rights of both parties and, if applicable, the best interests of the children.

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Method
Research participants
The study was based on semi-structured, in-depth interviews with 14 persons, eleven women and three men, who had undergone divorce mediation during the previous year. None had been married to any of the others. Ten of the women and one man had concluded the mediation with a settlement that was subsequently validated by the court. One man and one woman had terminated mediation and were in legal proceedings.

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Three of the interviewees were under 35 years of age, nine between 36 and 45, and two over 45. All but two were academics, and all were employed.

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All the interviewees had at least one child less than 18 years of age.

 Five had one or more children age six or younger, nine had one or more children between 7 and 15, five had one or more children between 16 and 18, and three had one or more children over 19.

In all but one case, the children were in the mother’s custody, and all of them had stable visiting arrangements with the non-resident parent. Nine interviewees reported that the divorce had been initiated by the woman, four that it had been initiated by the man, and one that the initiative was mutual.

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The participants were located and interviewed by practicing social workers who were studying for their MSW at the School of Social Work at Tel-Aviv University. In Israel, a BSW is sufficient for professional licensing as a social worker, and acceptance to an MSW program is usually contingent on having prior work experience.

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Each student located a single interviewee from among his or her personal acquaintances who met the following criteria: having at least one child less than 18 years old, having been divorced during the preceding year, and having undergone divorce mediation.

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All the interviewers were women, aged 35 to 45. Twelve were married, two divorced. All of them had five or more years of professional experience working with families in a broad range of professional spheres.

Data collection
The interviews were conducted in the interviewees’ homes, after their agreement was obtained. On average, each interview lasted around two and a half hours. Respondents were asked two open-ended questions: What was your experience of the mediation process? and What were the turning points in the process for you? The taped and transcribed interviews served as the basis of the study.

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Method of analysis
The interviews were analyzed by the author and a professional mediator with experience in qualitative research. The analysis was conducted using the grounded theory method (Strauss & Corbin, 1990), without any aspiration to building a theory on the basis of the findings, and a “constant comparison” approach to identifying the major themes.

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Each of us read the interviews separately before comparing our responses. After the first reading, 23 themes on which we both agreed were identified in the responses to the question about experience of the mediation process and five in the responses to the question about the turning points.

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In the second reading, we reduced the 23 categories to three (what helped in reaching a settlement, difficulties experienced in the process, and impediments to reaching a settlement) and two main types of turning points (insights and shifts in focus).

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Following a third reading, we identified four factors that facilitated reaching a settlement (the mediator’s providing structure, identifying the issues and focusing on the facts, creating a conducive atmosphere, and factors outside the mediation process), three main difficulties (working with the spouse, the large amount of energy required for the process, and the need of couples to make the decision on their own as a consequence of the mediator’s neutrality), and three key impediments (their own and/or their spouse’s emotional pain and flooding, the mediator’s not relating adequately to their feelings, and the mediator’s neutrality), and we further subdivided each of the two types of turning points.

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We present the findings by category, illustrating them with representative quotations from the reports.

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Findings
A. Experience of the mediation process
In describing their experience of the mediation process, the respondents spoke of what helped them to reach a settlement, the difficulties experienced in the process, and the impediments they encountered in reaching a settlement.

1. What helped couples to reach a settlement
The answers to this question included a broad mix of mediator behaviors along with some factors that lay outside the mediation process. Although overlapping, the mediator behaviors may be grouped as those that pertained to the parties’ interaction with each other and those that pertained largely to the relationship between the clients and the mediator.

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he mediator behaviors that pertain to the parties’ interaction with one another may be grouped into three categories: providing structures, focusing on issues and facts, and facilitating transactions.

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Providing structures
Of all the things that the interviewees credited with helping them to reach a settlement, the most frequently mentioned were the provision of structures, the clarification of issues, and the focus on facts. The structural factors included the regularity of the weekly meetings; the graduated, stepwise nature of the procedure; and the prioritization of the matters to be discussed.

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Responses included:
What the mediation process contributed most was the awareness that once a week we went to a place where we reported on what was happening.(2)
The mediation proceeded in stages. (1)
She saw the priorities that suited us, and we proceeded according to them. (3)

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Identifying the issues and focusing on the facts
Closely linked by the respondents with the provision of structures was the mediator’s help in identifying the issues to be discussed and focusing both parties on the facts:
He gave us the headings and clauses. (3)
We identified areas of agreement and disagreement, and then decided which issues would be mediated. (8)
He focused us on the facts at hand. (1)

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The means to these ends that interviewees appreciated included homework assignments that forced them to attend to details (Between the sessions, we had to make lists of what the children needed, to check our joint savings, and so forth [1]); and the mediator’s provision of information and suggestions regarding a variety of topics, including the divorce process, ways of meeting the needs of the children after divorce, regulations on child support, and the division of assets (6).

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Facilitating transactions
The interviewees spoke of the mediators’ help with two closely-related aspects of the transaction: enabling civil communication and facilitating negotiation with the spouse.
They named two main ways in which the mediators enabled them to communicate civilly with their spouse. The most frequently mentioned was the establishment of boundaries, whether by laying down ground rules of permissible discourse, by halting unacceptable communicative behaviors and returning the conversation to the practical issues that needed to be resolved, or by preventing arguments from escalating:
Every so often she stopped to explain the rules of the game, asked us to relate to each other with respect, with patience, and to listen to the other. (5)
He stopped us when we descended to the level of mutual accusations and always brought us back to the subject of the divorce agreement. (9)
He made it possible for us to argue openly, but made sure there was no escalation. (3)
The other aid to civil communication was the mediator’s highlighting the needs of the clients’ children rather than their own:
He highlighted the children’s immediate needs over the personal needs and well-being of the couple. (6)
She focused the process on parenting arrangements and neutralized our relations as a couple. (13)

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The interviewees reported that their mediators facilitated communication by encouraging give and take, problem solving, and exploration of alternatives; and by conferencing with them separately to help them over an impasse or to deal with a sensitive issue:
She spoke in the language of give and take. I got the apartment, he the small apartment we had and our savings. (5)
She presented our disagreements as issues that must be solved and emphasized that every issue has many solutions, and instead of each of us fortressing ourselves in our positions and rejecting the positions of the other, we could come up with new, creative solutions that were acceptable to both of us. (2)
When we reached a dead end or had to talk about an especially sensitive subject, she invited us for separate sessions. (5)

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Creating a conducive atmosphere
Finally, the interviewees spoke at length about ways in which the mediator’s behavior towards them as people created an atmosphere conducive to reaching a mediated agreement. Five valued mediator behaviors vis-à-vis the client can be identified:
1). Understanding, warmth, and non judgmental acceptance:
She accepted us as we were, without being judgmental…but with warmth, understanding, and acceptance. (12)

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2) Putting the clients at ease and keeping them calm:
She knew how to give both of us a feeling of security and ease. (3)
She calmed us down all the time. (4)
The calm, non-threatening atmosphere helped us to express our wishes and brought out the best in us. (6)

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3) Encouraging the parties to give voice to their difficulties and allowing them emotional release:
She encouraged me to talk about my difficulties. (4)
We could let off steam, and also have someone relate to our feelings. (5)

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4) Empowering the client: almost half the interviewees reported that they were helped by the mediator’s making them feel that they could resolve their conflicts and reach a satisfactory agreement on their own. For some interviewees, the empowerment was accomplished by the mediator’s non-directiveness; for one, by the mediator’s direct intervention:
The mediator gave us the sense that we have tremendous power in the process, and it increased with each point of agreement we reached. (12)
He gave us the feeling that we were formulating the agreement by
ourselves. (9)
We did the work between ourselves. She directed us on how to reach some sort of agreement, where to give in, how to proceed. In the end, we reached the agreement ourselves. (1)
5) Mediator neutrality, defined either as equal care, i.e., the mediator’s working equally towards the good of both parties:
She took good care of us both, and gave each of us an equal forum. (13)
The mediator was on the side of both of us. Once, when I felt she was on his side, she helped me to understand that helping him means helping us both and promoting communications between us. (3)
or as the mediators keeping their personal views out of the process:
He tried not to bring in his personal attitudes and values. (4)
For the most part, she didn’t intervene in the solutions themselves, except for the subject of the children, where she added information on the needs and feelings of children and the roles of the parents. (3)
Factors outside the mediation process

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Finally, several participants stated that they were helped by factors external to the mediation process and the mediator. These included the cooperation of their spouse and the support of family and friends:
I was lucky that my family supported me and was always ready to help. (11)
I was helped by my father, who stood by me like a rock and didn’t pressure me to start a war. . . I was greatly helped by a friend who had undergone mediation and the agreement she’d reached through it. (7)
Respondents also mentioned support from more distant sources, namely psychotherapy and the divorce laws:
The individual therapy that I started was what really helped me to take things in and to go on. (13)
The law gave us a frame of reference. (5)

2. Difficulties experienced in the mediation process
Most of the respondents described the mediation process as difficult, laborious, and exhausting: In one form or another, several said: Many times, I felt I didn’t have the strength. Three specific difficulties were named. The need to work cooperatively with a spouse with whom they were in conflict, the great energy required for the detailed planning they were asked to do, and the need to make their own decisions in consequence of the mediator’s neutrality:
It was the most difficult period in my life. I was sick two days before every session and two days after. After the session, we drove home together and argued. (2)
Every meeting was exhausting because we had to prepare for it for
hours. (4)
It was hard for us to know whether we were doing it right or not. He [the mediator] expressed his opinion only after we finished dealing with each matter,(3)
There were lots of times when I wanted answers, when I wanted things to be clear, but she said that we had to decide for ourselves and it was very difficult. (6)

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3. Impediments to reaching a settlement
The impediments differ from the difficulties in that, while the difficulties were not perceived as getting in the way of reaching a settlement, the impediments were.
One impediment that was cited was the interviewees’ and/or their spouse’s emotional pain and flooding:
I think that the emotional flooding impeded being task oriented. (1)
At the beginning, when he was very hurt and his feelings took control of him, he didn’t think enough and created obstacles, and I didn’t have patience and exploded even more. (11)

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Most of the impediments that were named concerned the mediators’ treatment of the interviewees’ emotions or the mediators’ neutrality. Several interviewees, including two who named their pain and flooding as an impediment, complained that the mediator paid insufficient attention to their emotional needs and excessive attention to minor details or to the needs of the children:
The mediation left no room for emotions, it was too down-to-earth,
There was too much attention to details and not enough attention to the therapeutic aspect. (4)
She made us come with information on the smallest details, and it was a lousy feeling of what’s left of our lives, (6)
There was no need to consider only the children and to understand only them. There should have been consideration of the needs of the adults, not only the children. (1)

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Four complained that their mediators were not really neutral, in that they favored the spouse. One felt that the mediator, whom she criticized for not expressing her opinion, allowed her husband to run the show, and was not really neutral. (7).

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Three complained that their mediator did not give them sufficient support or protection. Of these, one complained that the mediator pressured him:
The mediators put the squeeze on me…They identified her as strong and me as weak, and so expected me to make more concessions and weren’t neutral…They should have defended me more. (2)
Two complained that the mediator did not pressure their spouse –to sign an agreement or to try to rehabilitate the marriage:
I sometimes felt that he [the mediator] didn’t support me enough, especially regarding my relationship with my daughter…. When he didn’t pressure her to sign the agreement, I felt that he was betraying me and not performing the function that we went to him for. (10)
I felt that the game was fixed from the beginning. I often felt attacked, pressured, in a defensive position, with a mediator who wasn’t neutral… I was very disappointed that he [the mediator] hadn’t managed to persuade my husband to continue and try to rehabilitate our marriage. (11)
Several interviewees said that while they felt that the mediator was impartial, their spouse did not:
I thought she was neutral, but my husband thought she tended to identify with me on the subject of the children. (5)
I thought that she took an impartial position all along, but my husband thought she favored me. (3)
Of the interviewees quoted here who felt that the mediator was not neutral and favored their spouse, only one (7) reached a mediated settlement.

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B. Turning points
The interviewees named four types of turning points. The most prevalent was an insight acquired in the course of the mediation. Three types of insights were mentioned:

realization that they themselves, not the mediator, were responsible for their reaching a settlement; and understanding that the marriage was indeed over and that their partner would not consent to stay with them:
I could see all his difficulty…Our ability…to see one another enabled us to get out of our deadlock. (6)
I began to pay attention to her side in the matter and we began to get closer. (5)
We understood that the mediator was not a judge and that we had to reach a settlement on our own. (3)
When I understood that there was no chance she’d stay with me, I decided to change my perspective and look ahead more towards the future. (12)

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The second type of turning point was a shift in focus, effected with the help of the mediator, from the couple’s own interests to the good of the children or from the past to the future:
The mediator changed our way of thinking; instead of focusing on our fight he changed our perspective to the best interests of the children. (6)
We were interested in the future instead of fighting about the past. (7)

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The third was the understanding that failure to reach a mediated settlement would result in litigation. Two women, (5) and (3), claimed they feared that if they did not reach a mediated agreement, their husbands would sue for divorce in the rabbinic courts, which proverbially favor the man’s claims over the woman’s.
The fourth turning point, mentioned by one interviewee, was a sudden and very frightening meeting with her own hitherto unacknowledged rage: The turning-point was an explosion that occurred around some two-thirds through the sessions. It frightened and jolted me. I didn’t want it to happen again. (3).

Discussion
In describing their experience of the mediation process, the respondents spontaneously focused on what helped them to reach a settlement, the difficulties they experienced in the process, and the impediments they encountered. That is, most of them described their mediation as an experience that was, at one and the same time, helpful but difficult and fraught with obstacles.

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To a large extent, the interviewees’ accounts of what helped them to reach a settlement highlight the perceived value of appeals to the rational mind to enable them to keep their hurt and angry emotions from undermining their discourse.

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Their accounts are consistent with claims of other clinical and research studies regarding the value of clear structures, gradation, order and regularity, along with focus on facts and substantive issues at a time when the individuals are likely to be emotionally overwrought (Amato & Fowler, 2002; Benjamin & Irving, 1995; Cohen & Finzi, 2005; Gale, Mowery, Herman, & Hollett; 2002; Grebe, 1988).

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Similarly, the interviewees’ appreciation of the mediators suggesting alternative solutions, laying down rules of civil communication, and focusing them on the children rather than on themselves are consistent with conclusions of other studies that successful mediators tend to intervene actively to encourage productive exchange while discouraging destructive conflict (e.g., Benjamin & Irving, 1995).

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Yet the clients’ voices provide far more than an endorsement of the much written about structural or facilitative model of mediation (Bernard, 2004). They draw attention to the great difficulty of the process. Most of the interviewees found the experience trying.

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The difficulties they named – working cooperatively with a spouse with whom they are in conflict, the detailed planning they are required to do, and the need to make their own decisions in consequence of the mediator’s neutrality –are all at the heart of the mediation process.

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For mediators, the participants’ accounts highlight three conundrums. One concerns the much debated question of how much and what kind of attention to pay to the clients’ emotions and internal processes (Lunds, 2000). Along with emphasizing the value of the structural elements of the mediation, most of the participants highlighted the usefulness of the relaxed, non-judgmental atmosphere their mediators fostered and their mediators calming them down, putting them at ease, allowing them emotional release, and demonstrating understanding, warmth, and acceptance.

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The conundrum is evident in the fact that while most of the study participants apparently found the limited and contained emotional expression and release they were allowed adequate and appreciated the check on their more turbulent feelings, some named a lack of sufficient attention to their emotional needs as an impediment to reaching a settlement.

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They told that their own or their spouse’s emotional flooding kept them from being task oriented and/or complained that the mediator paid insufficient attention to their emotional needs and excessive attention to minor details.

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In addition, the most frequently named type of turning point in reaching a mediated agreement was an insight, whether about the pain and position of the partner, the client’s own responsibility for the agreement, or the fact that the marriage was over.

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The mention of these turning points underscores the importance of mediators’ ability to promote both the client’s understanding of their own inner processes (Thoennes & Pearson, 1985) and empathy with the spouse’s feelings and position (Bush & Folger, 1994; Slaiku, Culler, Pearson J, & Thoennes, 1985). The importance of self-awareness to the success of the process is further suggested by the interviewee who named as a turning point her meeting with her own hitherto unacknowledged rage.

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 Promoting these insights requires more than focusing on the issues and keeping the clients calm. It requires dealing with their emotions.

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The second conundrum concerns the conflict between the value the interviewees placed on empowerment, on the one hand, and their desire for direction, on the other (Bailey & Robinson, 2005; Gibson, 1999; Love et al, 1995).

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Almost half of the interviewees spontaneously reported that they were helped to reach a settlement by the mediator’s making them feel that they and their spouse had the power to formulate their own agreement.

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 In a similar vein, some interviewees named the mediator’s neutrality, in the sense of not expressing his opinions or intervening in the solutions, as helpful to reaching a settlement.

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These findings accord with the view that the mediator’s role is to guide the disputants in their negotiations, so that they can take responsibility for their own settlement (Beck & Frost, 2006; Milne, Folberg, & Salem, 2004), and are consistent with other findings suggesting that allowing the parties to fashion their own settlement helps them to reach an agreement (Tjersland, 1999).

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On the other hand, both these and the other interviewees spoke of wanting clear answers, finding it difficult to decide everything on their own, and feeling frustrated and uncertain as to whether they were doing it right.

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Several named as a difficulty the detailed planning they were required to perform so as to be able to conduct their own negotiations and to reach their own agreement. Some named as a hurdle their mediator’s unwillingness to suggest or support alternative solutions. Conversely, consistent with other findings and claims (Benjamin, 2004; McKnight & Erickson, 2004), several interviewees found the mediator’s directiveness in shifting their attention to the needs of the children helpful, and one named this shift as a turning point. These responses suggest the value of a more directive approach.

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The third conundrum concerns mediator neutrality in the sense of not favoring one party or solution over the other. A great deal has been written about this vexed subject. Scholars rightly emphasize the importance of such neutrality to clients. Yet they also question both whether it is really attainable or always desirable (Astor, 2007; Beck, Sales, & Bruce, 2000; Beck, Sales, & Emery, 2004; Cobb & Rifkin, 1991; Cohen, Dattner, & Luxenburg, 1999).

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The study participants spoke of neutrality in the sense of refraining from favoritism in two contexts. One was as an aid to reaching a settlement. Both interviewees who referred to such neutrality in this context linked it with caring, telling that the mediator cared equally for both parties. This link suggests that the mediator’s ability to convey care for both parties may be more important to clients than an impossible equidistance or a policy of rigidly refraining from expressing opinions.

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The other context was the opposite: Lack of mediator neutrality in the form of favoring the spouse was named as an impediment to reaching a settlement. Here the complaints were that the mediators allowed the spouse to take control of the process, pressured the interviewee to make the concessions, or did not compel the spouse to make a concession the interviewee wanted — whether this was signing the agreement or to rehabilitating the marriage.

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Although these interviewees complained of their mediator’s lack of neutrality, what they apparently wanted was a mediator who took their side.

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The clients’ accounts point to both the perceived centrality of the mediator to the success or failure of the process and to the role played by factors external to the mediation process and over which the mediator has no control. Three types of external factors were named: the cooperation of the spouse; the social support of family, friends, and professionals, and the boundaries established by the law. The importance of spousal cooperation (Cohen, Dattner, Luxenbirg & Matz, 1999; Hetherington & Kelly, 2002; Katz, 2007) and the role of the law have both been noted in the literature on divorce and custody mediation (Burr, 1997; Wall et al, 2001).

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The contribution of social support is, however, less recognized.
This study has several limitations. It is based on a small, convenience sample of persons who had underdone private, voluntary, fee for service mediation.

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The clientele of these services tends to be better educated and of higher SES than the vast majority of clients who are referred to court sponsored mediation, and the mediation process itself tends to be more extensive (Beck, Sales, & Emery, 2004).

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The sample consists mostly of women in traditional marriages. None are from blended families or families with major problems of domestic violence or substance abuse. The study itself makes no distinctions by gender, motives in seeking mediation, issues mediated, or other features of the interviewees. Nor does it distinguish their comments by the outcome of their mediation or by the mediator’s style, emphases, methods, qualifications, level of skill, or any of the other ways in which mediators may differ from one another.

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These limitations mean that the study findings cannot indicate what sorts of behaviors on the part of mediators have what sorts of effects with what sorts of client couples in what sorts of contexts, as Irving and Benjamin (1995, p. 412) would have mediation research do.

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With this, it is one of few studies of divorce mediation to date that is based on open ended interviews allowing us to hear the clients’ voices. Its broad questions enabled us to tap into clients’ spontaneous views and experiences of the mediation process, free of the preconceptions and directiveness that are inherent in more specific questions.

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 While many of their statements are consistent with the findings of previous studies (as noted above), others point to matters that have received little scholarly attention. The difficulty clients experience in mediation is rarely noted in the literature, except with regard to high conflict couples and psychologically troubled (Cohen, Dattner & Luxenburg, & Matz; 1999; Pruett & Johnston, 2004).

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The importance clients ascribe to the mediator putting them at ease, allowing them emotional release, and demonstrating understanding, warmth, and acceptance is frequently noted in professional manuals, but the scholarly literature tends to treat these behaviors mainly as indicators of client satisfaction (e.g., Kelly, 2004).

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It also places greater emphasis on mediators providing clients with the opportunity to air their concerns (Beck, Sales, & Bruce, 2000; Beck, Sales, & Emery. 2004) than to express their feelings and explore their emotions, which the study participants emphasized.

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Furthermore, it is virtually the only published study to date that refers to turning points in divorce and custody mediation or that indicates the positive role of social support in such mediation.

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The findings have implications for practice. The main one, stemming from the conundrums highlighted in the interviewees’ accounts, concerns the importance of mediator flexibility. Namely, it is important that mediators try to discern and to balance their clients’ very different and even contradictory needs: for structure and a conducive atmosphere, on the one hand, and for attention to their emotions, on the other; for empowerment to reach their own settlement and for suggestions and direction so that they do not feel rudderless and afloat; for even-handedness and fairness, but also for caring and sympathy.

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The findings further suggest that the mediator’s ability to project understanding, acceptance, and caring may be more important to helping clients reach a settlement than some abstract idea of neutrality, which is difficult if not impossible to attain, and which not all the study participants appreciated or understood. Indeed, it is advisable that that mediators be attentive to signs that clients feel pressured or treated unfairly, as such feelings, even if unfounded, may lead to termination of the process without a settlement. Where such feelings are detected, caucusing may be helpful to provide extra support or a different perspective.

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In addition, the findings suggest that mediators consider tapping factors outside the mediation process. These include external factors, such as support from family, friends, and helping professions; the boundaries established by the law, and the implications of litigation, and internal factors, especially insights into the pain and point of view of the spouse, into the reality that the marriage is over, and into the clients’ own responsibility for the settlement. In particular, the findings on the turning points underscore the importance of the mediator’s ability to promote both empathy with the spouse’s feelings and position (Bush & Folger, 1994; Slaiku, Culler, Pearson J, & Thoennes, 1985) and understanding of one’s own (Thoennes & Pearson, 1985).

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Finally, even as they support previous findings of the efficacy of mediators focusing clients on the needs of their children (.e.g, Emery, Sbara & Grover, 2005), the study findings also suggest that mediators should keep in mind how difficult the process may be and share this understanding with their clients.

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Further study based on interviews with clients is recommended. Ideally, these should be larger studies that interview at least several dozen clients. This would enable a finer elaboration and possibly differentiation of the experiences and perceptions of men and women, of clients who reached and did not reach a mediated settlement, and of clients in different types of mediation (court-based, private), and so on.

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 Moreover, using larger samples, researchers might investigate in greater depth issues that this study revealed to be problematic, including the desired balance of mediator attention to the details of the dispute and to the underlying emotional issues, client definitions and perceptions of mediator neutrality, and their relation to empowerment in the mediation process.

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Further study should also be carried out on clients’ explanations for failures in the mediation process so as to learn more about what mediators can and cannot do to facilitate satisfactory mediated settlements.

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In addition, future studies might ask the research participants to comment on the presentation of the findings, both to sharpen and clarify the issues at hand and to empower the clients.

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Finally, understanding of the clients’ experience of the mediation process might be greatly enriched by studies that include both spouses.

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* The author would like to thank to N. Dattner and A. Luxenburg to their stimulating and thoughtful comments.

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