The Settlement‐Orientation vs. the Problem‐Solving Style in Custody Mediation

Abstract

While empirical studies have generally demonstrated the value of mediation in divorce, little research has been conducted on the specific models of mediation that are most efficacious in such disputes. This article reports the results of an intensive analysis of 32 cases of custody mediation conducted at the Essex County (NJ) Family Court. One‐half of the cases represented predivorce parental disputes; one‐half were postdivorce disputes. Nearly half of the cases were characterized by extremely high levels of parental conflict. Mediator behavior was assessed in one 1 1/2–2‐hour closing case conferences, supplemented by the examination of audio or video recordings of mediation in 62% of the cases. The effectiveness of mediation was assessed by a postmediation telephone interview and by an analysis of court records, both conducted approximately 18 months after the termination of mediation. Two contrasting styles of enacting the mediator role were identified: The settlement‐oriented style (SOS) and the problem‐solving style (PSS). Mediators tended to use one or the other style. The SOS mediators were primarily concerned with getting a “settlement” and staying “neutral”; PSS mediators were more focused on understanding the causes of the conflict through persistent question asking and were willing to depart from strict “neutrality” in cases where the conflict was being fueled by particularly destructive behaviors in one of the parents. SOS was the mediator style in 59% of the cases, PSS in 41%. Compared to SOS, PSS produced a more structured and vigorous approach to conflict resolution during mediation, more frequent and durable settlements, and a generally more favorable attitude toward the mediation experience. SOS was not necessarily bad, but PSS was better.

Agreement, Maintenance, Satisfaction and Relitigation in Mediated and Non-Mediated Custody Cases

“…As several authors have noted, the range of agreement or settlement rates quoted in most custody mediation research is between 40% to 70% (Emery, 1995;Hale & Knecht, 1986;Kressel, Frontera, Forlenza, Butler, & Fish, 1994;Pearson, 1980;Thoennes, Salem, & Pearson, 1995;Zemmelman, Steinman, & Knoblauch, 1987).…”

“…Mediation is perceived as fairer, as involving less pressure to make unwanted agreements, as producing more satisfying agreements, and as giving more control over decisions than the traditional adversarial process (Keilitz, Daley & Hanson, 1992). Of course, satisfaction is also a function of the style of mediation (Kressel, Frontera, Forlenza, Butler, & Fish, 1994). In terms of disputant satisfaction with process and outcome, we hypothesize that:…”

Social Exchange Theory: Premises and Prospects

“…The problem-solving process consists of active questioning and empathic listening, acknowledging the other's perspective and value differences, and joint drafting of proposals. The result is agreements that are better than compromises and contribute to improved relations (e.g., Kressel et al, 1994).…”

Personal Reflections on Morton Deutsch's Influence on the Study of Mediation.

“…A quarter of a century later, in his insightful personal account of social psychology in the 20th century, Deutsch (1999) wryly observed: Every society has its own implicit assumptions of which its members are not usually aware. However, my own recent research and that of a few others (e.g., Brett, Drieghe, & Shapiro, 1986;Kressel et al, 1994) has conjured seriously with the impact of the broad social context in which mediators are embedded on what they do and how they come to think about their role. Its ethos is that of the lone, self-reliant, enterprising individual who has escaped from the restraints of an oppressive community so as to be free to pursue his or her destiny in an environment that offers ever expanding opportunity to those who are fittest.…”