Advice by any other name…

Abstract

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.

Using the “mediatable frame” to define the problem in mediating a parenting plan

“…There is growing evidence that this is a necessary feature of all professional relationships and as such inheres in the mediator role. Expressions of this authority vary, notably offering suggestions (Alfini, 1991); selective facilitation (in which discussion is focused on the mediator's preferred options; Greatbatch and Dingwall, 1989); questioning so as to create doubt (Fisher, 2001); implicit communication (grounded in the mediator's nonverbal emissions; Kandel, 1998); and, as in TFM, explicit intervention, including use of the mediatable frame. On the basis of such evidence, Golann and Aaron (1997) concluded (and we agree) that substantive influence inheres in the mediation process itself, as a by-product of the necessary authority of the mediator.…”

Locations for advice‐giving and the production of neutrality in divorce mediation sessions

“…In facilitative mediation programs a premium is put on disputant autonomy. Actions such as advice‐giving are therefore potentially problematic if they result in the mediator engaging in the substantive issues of the dispute rather than focusing on neutral facilitation of the interaction (Boulle, Colatrella, & Picchioni, 2008; Fisher, 2001; Garcia, 2012; Zumeta, 2006). However, in some mediation programs, mediators are allowed or even expected to contribute ideas for the resolution of the dispute and take an active approach to creating agreement (Kolb, 1981; Wissler & Rack, 2004).…”

“…The neutrality of the mediation process and the mediator's facilitation of the session is a widely held value (e.g., Alberts et al, 2005; Fisher, 2001; Herrman, 2006; Kressel, 2000; Zumeta, 2006). Some scholars, however, challenge the idea that neutrality is a necessary or desirable aspect of the mediation process (see, e.g., Bishop, Picard, Ramkay, & Sargent, 2015; Mayer, 2004; Mayer, Stulberg, Susskind, & Lande, 2012).…”

“…Previous research on advice‐giving in mediation acknowledges the potential challenges to neutrality inherent in the choice to either give advice explicitly or make suggestions in other ways. For example, Fisher's (2001) study of family mediation showed mediators using a wide variety of types of utterances to convey advice or help disputants consider perspectives they had not yet done. He concludes that while there are potential risks to neutrality from advice‐giving, the benefits of constructive contributions often outweigh these risks.…”

“…Mediators also use a range of techniques to formulate advice so its status as advice is not fore grounded. For example, mediators typically give nonprescriptive rather than prescriptive advice, do advice‐giving indirectly through education and instruction of the mediation clients, or give procedural as opposed to substantive advice (Fisher, 2001; Garcia, 2012).…”