Jo Daugherty Bailey, University of Houston-Downtown, baileyj@uhd.edu

Abstract

The empowerment of disputants is a core concept in the mediation literature.  The current study was conducted to contribute to the understanding and theoretical development of empowerment in divorce mediation.  A thematic analysis of interviews with seven family mediators found the mediators’ perceive divorce mediation to be an inherently empowering method of resolution and revealed an environmental explanation for empowerment in mediation and disempowerment in the court system.  The mediators also described personal, contextual, and structural features that may foster disempowerment in mediation.

Introduction

Mediation is a process in which a neutral third party assists a complaining witness and a responding witness to discuss their dispute and determine whether or not the two parties can resolve the issue in a manner that is mutually satisfactory to the disputants.  The goals of mediation include offering a forum for parties to discuss their situation and to assist them in negotiating a settlement of their dispute.  The mediator’s task is to facilitate communication between the parties and guide them through the various phases of the mediation process; the mediator controls the process while the disputants control the content (Beer, 1986; Ostermeyer, 1991; Wildau, 1987).  The mediator guides the process with the use of a variety of techniques including active listening, clarifying and summarizing (Wildau, 1987; Beer, 1986). 

The value of mediation as a way to resolve disputes has been demonstrated by a number of research studies.  Research comparing outcomes in cases that are mediated versus those that are litigated have concluded that mediation offers reduced court time and lower costs, and higher compliance rates than litigation (Bahr, 1981; Emery & Wyer, 1987; Emery, Matthews and Kitzmann, 1994).  Another important finding is that of Pearson and Thoennes (1984) in which parties were generally satisfied with mediation; however, this finding is complicated by gender differences found by Emery and Wyer (1987) and Emery, Matthews and Kitzmann (1994) in which men reported greater satisfaction with mediation than women.  

While not a position shared by all, for many proponents of mediation, one of the primary functions of the mediator is to create an environment that empowers the parties in a dispute.  Shailor (1994) writes that mediators claim to empower the parties via “a forum for self-determination,” and “a model for cooperation and compromise” (p. 135).  The centrality of party self-determination or empowerment in mediation is illustrated in the "Model Standards of Conduct for Mediators" a joint statement by the American Arbitration Association, American Bar Association, and the Association for Conflict Resolution (2005):
 

Standard I.  Self-Determination.  A mediator shall conduct a mediation based on the principle of party self-determination.  Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. The principle of self-determination is emphasized further by the Symposium of Family Practice (2006) in its “Model Standards of Practice for Family and Divorce Mediation:” 
 

Standard I.  A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.  Self-determination is the fundamental principle of family mediation.  The mediation process relies upon the ability of participants to make their own voluntary and informed decisions.

The research on empowerment in mediation is limited; however, some exploratory studies (Cobb, 1993; Garcia, 1995) have been conducted that have explicitly analyzed empowerment in mediation.  Cobb (1993) interviewed 15 mediators in New England.  Mediators were asked to describe how they empower parties in mediation.  The mediators expressed that they empower disputants via three primary techniques.  The first technique is that of “balancing power between the parties,” in which mediators claim to assess the relative power of each party and effect mediator control in order to permit the less powerful party to engage in the process and advocate on her or his own behalf.  The second, and related, technique is that of “controlling the process.”  In this technique, the mediators establish rules for the parties’ participation, move the parties through the phases of mediation, and maintain the stated rules for participation.  The third technique described by the mediators is that of neutrality.  According to the mediators, their neutrality is maintained by not favoring any particular party and by remaining impartial to any agreement reached.  Cobb examines the seeming contradiction between the practice of neutrality and the technique of balancing power.  She determines that the form in which mediators ask questions and permit responses to those questions, and the rules they impose regarding participation in the mediation, help to frame the content of participants’ conversations in mediation.   

In another study, a narrative analysis of nine mediated cases involving 43 participants, Garcia (1995) analyzed the nature of interaction in mediation, with a particular focus on the ways in which mediators exert control.  She found that in order to express their interests during mediation, parties had to conform to the rules of interaction set forth in mediation (e.g., turn-taking).  In this, in order to participate in the process, the parties had to follow rules, thus giving up some control and self-determination.  Additionally, the researcher found that mediators reframe parties' statements, elaborate on their statements, and sometimes actually replace a party by engaging in direct negotiations with the other party.  Echoing Cobb’s (1993) findings, Garcia states that in undertaking such behaviors, mediators relinquish their neutrality.  The use of intervention techniques such as these, however, has been defended (Haynes, 1994) as necessary to empower the weaker party in the negotiations.

Study Purpose

The current study was conducted to contribute to the theoretical understanding of empowerment in divorce mediation.  In a previous study (Bailey & Robbins, 2005), researchers explored the disposition of child possession in 61 mediated and 59 non-mediated divorce cases in Texas.  They proposed that changes to the Standard Possession Order (SPO), as detailed in the Texas Family Code §153.312, were reflective of the parties’ empowerment and were interested in whether changes to the SPO were related to the method of resolution used in the case: mediation or non-mediation (i.e., litigated or negotiated).   In Texas, the SPO outlines the default arrangement for child possession for children ages 3 to 16 and details the days and times for child possession.  In order to fit their family’s needs, parents do have the option to modify the SPO, therefore changes made to the SPO are likely to reflect the couple’s input into and control over the final disposition.  The findings in that study included that couples who mediated were significantly more likely to make changes to the SPO than couples who did not mediate, and the researchers concluded that couples who mediated were more empowered than couples who did not.  However, the researchers’ conceptualization of empowerment as “changes made to the SPO” (see Bailey, 2000 for a complete methodological discussion of this definition) is unique in the literature.  The present study was undertaken to further investigate this conceptualization by exploring the meaning and environment of empowerment in divorce mediation with experts in the field.

Method

Sample

Seven family mediators (five of whom were female) from Texas were interviewed for the study.  No one who was contacted refused participation.  The resultant purposive sample of participants was highly educated and most had extensive experience as family mediators.  Three of the mediators were attorneys, two held MSWs; one was both an attorney and an MSW; and one was an attorney with a Masters in counseling.  Six of the mediators were in private practice in their respective fields, and one mediator worked for a governmental agency.  None were employed as full-time mediators, but each offered mediation among the services they provided in their practice, and most performed mediation services as a volunteer.  All but one had received formal mediation training, and five had received additional training in family mediation.  The participants’ mediation experience ranged from a minimum of five years to a maximum of 19 years.  Their experience in practicing family mediation ranged from three to 18 years. 

Procedure

Two of the interviews were conducted in person, and the remaining five were conducted over the phone.  An interview guide was developed to ensure that each mediator was presented with the same questions.  The underlying assumption for the research was that mediators have an educated view and experiential knowledge of the process of divorce mediation, offering an insider’s view of the concepts under study.  The initial focus of study was the mediators' accounts of the relationship between empowerment and the number of changes to the SPO and to explore their perspectives regarding the differences between the mediation and court environments.  In addition, to scrutinize the researcher's conceptualization of empowerment in divorce mediation, the mediators were asked questions about instances in which empowerment was negated.  Specifically, questions were asked concerning the absence of empowerment and the occurrence of disempowerment in mediation. 

To analyze the information gathered from the interviews with the mediators, a thematic analysis (Miles & Huberman, 1994) was conducted.  The information from the narrative data was coded using descriptive and interpretive codes.  The number of interviews was expanded until saturation was achieved (a method for attaining validity in qualitative research), that is until no new codes emerged from the data.  After first level coding of the data, the researcher returned to the data to check the consistency of the coding.  The data was then analyzed for recurring patterns, placed into categories based upon emerging themes, and then reviewed to ensure consistency in the categorization of the data.  The analyses of the qualitative data are presented in narrative form.  Some analyses also include tables for illustrative purposes.  Excerpts from the interviews are presented verbatim in italicized form except where the researcher includes some bracketed words for clarification as needed.  To maintain confidentiality, the researcher presents these quotes without reference to a particular mediator, but rather a general referral is made to "respondent," "interviewee," or "mediator."

Findings

Data analysis resulted in two major themes: 1) how the mediation or litigation environments impact the likelihood of divorcing couples making changes to the SPO, and 2) a description of a process of disempowerment of parties in divorce mediation.

Changes and the Environment 

In response to the question, "In your practice, do mediated couples or litigated couples make more changes to the SPO, and to what do you attribute this?," all of the mediators replied that couples who mediate were more likely to make changes to the Standard Possession Order.  The mediators explained this supposition in environmental terms: the environment of mediation promotes and the environment of litigation discourages active participation and control over the outcome by the parties to a case (see Table 1).  The interviewees’ descriptions of these environments were rather general but remarkably consistent.

In litigation, the judge (often referred to as 'the court' by the interviewees) maintains the decision-making authority.  According to one mediator, the judge “does not have the time to enter lengthy discussions of minutia in each case” before the court.  Thus, to make these decisions efficiently, the judge relies upon and implements the SPO.  One respondent explains,
 

“In other words, what I'm saying is if the case goes to court, the judge is not gonna cut and paste on Standard Possession Order.  They don't have time, they don't want to, they don't want to mess with it; so, they may effect a little change here or a little change there in Standard Possession Order.”

And another, “The courts are reluctant to stray very far from the printed word.  There's comfort to the judges in just taking a Standard Order because seldom can anybody really object to that…the judges really can't be attacked if they impose the Standard Order.”

Two critical elements define the litigation environment.  The first is that the court has the power.  That is, the court has the decision-making power over the litigants and their outcome: 
 

“Whereas, in the courtroom setting, it’s pretty much just imposed on them as it sits in the Family Code.”

The “courts are somewhat reluctant [to make changes] if you litigate.  There's no need for them to really bury a Standard Possession Order.”
 

“I don't know that the Court necessarily has assisted to do that [make changes to the SPO] even for shift-working people.”

Emanating from this concept of court power is the second and related environmental element of reduced opportunity for making changes.  Because the court maintains the power and is seen as unwilling to make changes, the litigating parties do not have the breadth of options for making changes regarding possession issues.  One mediator explains,    
   

“When people go to court, they end up with a judge who's very busy, who sees many cases, who has his own personal opinions, and has the constraints of following his interpretation of the law, and people don't have an opportunity to tailor-make the agreement that's at their particular needs.”

In contrast to the litigation environment, the mediation environment permits the opportunity for mediating couples to create changes to the SPO.       
        

“In the mediation process, [there is] an opportunity to explore the Standard Order and understand it…so they get to ask questions, review it, see if they want to look at alternatives.”

Mediation “gives them the opportunity to deviate from the standard types of things that generally is what the court's going to do.”
 

There is a “customization aspect of mediation.  And also, people that come into mediation come, partly, for that reason.  They want, they're a little bit more educated about the possibility of customizing their divorce.” 

This opportunity for change in mediation is seen by the mediators as having a meaningful impact upon the outcomes for the disputing couples.  The changes are not superficial, but rather, they represent a selective and creative process whereby the parties are able to mold the decree to fit their particular and unique circumstances.  As such, a second environmental issue for mediation is that the divorcing couples maintain greater control over the outcome of their divorce.  This control is manifested in the concept of "fitting:" mediation produces an opportunity for change in which the parties can "fit" the possession order to their lifestyles and needs.  According to one mediator,
 

“They are empowered to have it reflect who they are and what the needs of the kids and the family is able to take into consideration their family's particular needs and schedules and activities.” 

Others confirm, “They have the opportunity to consider alternatives to the standard…that fit their lifestyle.”

“They have an opportunity to talk about their particular circumstances and to try to decide and to make a decision between themselves of what will work for them because the Standard Order doesn't work for everybody.” 

According to one mediator, these changes occur in mediation “because of their schedules, because of their particular, you know, needs, because of their work schedules, because of the needs that they have for their own children.”

Table 1.  Environments

Thus, the mediators' accounts of the differences between the litigated process and outcomes and the mediated process and outcomes are environmentally based: 1) the litigated environment is one in which the court's power is evident, and the opportunity for adapting the possession order to the needs of the parties is limited when compared to the mediated environment; and, 2) the mediated environment is one in which the parties maintain greater control over their outcomes, the opportunity for altering the possession order is manifest, and such changes are made for the purpose of fitting the unique needs and lifestyles of the parties.  In addition to these environmental distinctions made by the mediators, all of the mediators concurred that mediated cases would reflect more changes to the SPO than litigated cases and  characterized this as possible evidence of empowerment.

The Disempowerment Process

A second pattern that emerged from the data encompassed the mediators' responses to those questions pertaining to disempowerment and what is not empowering in mediation.  Based upon the analysis of the content, the mediators’ responses were categorized as follows:  personal characteristics, or the characteristics and behaviors of the disputants, attorneys, and mediators; structure, or the mediation form or style; and context, or the unique issues present within a given case (see Table 2).

Personal characteristics.  The mediators described two types of characteristics which when displayed by any participant in the mediation may negatively impact and suppress empowerment of the parties: skillfulness and power and control.  The interviewees responded that individual skills, whether it be the attorney's, a party's, or the mediator's, may contribute to a disempowering environment:

“Their lawyers …kind of [need to] disarm both of the parties in order to have a successful [and empowering] mediation.”    
 

“And a naïve mediator might very well let [disempowerment] happen, you know, especially if the person was pretty slick.”
 

“It really comes down into the mediator's skill in trying to equalize that and do what they need to do…to equalize the power and the situation.”
 

“Or where the person is just more verbal or understanding … [they are unable] to speak up and say what they want, either in terms of knowledge or communication style.”

In addition to skill level, the control or power exerted by a participant may be disempowering, whether the participant is a mediator or a party to the dispute:
 

“The classic circumstance is the mediator hands the parties the mediator's recommendation at too early a stage.  The people - they've been mediating for four hours and they're not even close to an agreement and the mediator comes in and says, "Well, here's what I think we should do," and the people accept it.  And because they have let's just say, confidence or faith in the mediator, which has been developed over some short period of time, well that's disempowering. That's disempowering because it's not the parties' agreement, it's the mediator's agreement.”
 

“I think a lot of people that are mediating right now don't really allow empowerment to occur, [they] don't understand how important it is to empower the clients to really make decisions rather than really directing them, more or less, to make -- to do it a certain way.”
 

It is disempowering if one of the parties is “being, you know, very overbearing or -- you know -- intimidating in the session.”
 

“Whether it's disempowerment by the more obviously -- the party who's obviously -- appears to be more powerfully -- more powerful in terms of the way they communicate or the money they have or their confidence or whether it's the person who has power, but it's not as obvious through the way they manipulate situations.”

Structure.  Some of the mediators described the shuttle form or conference style of mediation as an inhibitor to empowerment.  In this style of mediation, the parties are situated in separate rooms while the mediator "shuttles" back and forth between the rooms and acts as the conduit for negotiations.
 

“Unfortunately a lot of people who are doing what they're calling mediation are actually doing settlement conferences… muscle mediation… arbitration.  They're doing settlement conferences where, basically, they're just acting like a lawyer or a judge and just trying to cut things down the middle…, so it's not a process of the parties really participating.  It's just a back and forth shuttle-diplomacy session.  Sometimes the parties are never in the room together….This is not mediation…This is totally inappropriate….I feel like that's very disempowering because it's essentially just like them going to court….”
 

What is “disempowering is that people don't try to have the parties communicate in the same room.  So, you're not teaching them how to communicate, you know, allowing them or encouraging them to try to form ways of communicating directly…and if they're going to have a versatile, flexible visitation schedule…they need to be able to communicate.”

Contextual hindrances.  Finally, there exist unique circumstances that may hamper empowerment in mediation.  According to the mediators, these contextual hindrances include issues of trust and substance abuse. One respondent explains, ”If you're dealing with a parent who is impaired, maybe through some substance abuse ….[results are] not as satisfying as they would like…I guess it's disempowering.”

This is more fully explained by one mediator who links trust to issues of substance abuse.  “For instance, you've got a wife…who may suspect or may believe dad has a substance abuse problem, alcohol, or whatever.  She's going to [want] safeguards for fear that he's going to bring upon the child - be involved in an accident, get arrested….”

Table 2.  Disempowerment Process

The mediators accounted for disempowerment in a variety of ways, and their descriptions portray a process of interrelated variables: the characteristics of participants in the mediation, the structure of mediation, and contextual issues, all of which may contribute to a lack of empowerment and may be disempowering in a mediation.

To summarize, the mediators believe that mediation is more likely to be empowering for couples who divorce than is litigation.  The data indicated that it was the mediators’ understanding that disputant empowerment can be evidenced by the number of changes made to the SPO, and the data also indicated that mediators expected mediated cases to reveal more changes and therefore expected the parties in mediated cases to be more empowered than those in litigated cases.  The mediators described the litigation environment as inherently limiting to party empowerment and the mediation environment as intrinsically empowering for divorcing couples, and they offered explanations of underlying influences and processes at work in divorce litigation and mediation. 

Discussion

This study informs on processes at work in divorce mediation by gathering the perspectives of seven professionals who have intimate knowledge of mediation.  All of the mediators interviewed concurred that changes made to the Standard Possession Order reflect empowerment of divorcing parties, and they all predicted that couples who mediate their divorce would be more likely to make changes to the standard order than couples who litigate.  Through a thematic analysis of the mediator interviews, two themes emerged which describe phenomenon in the divorce milieu: 1) environmental processes and their effects upon changes made to the Standard Possession Order and 2) the process of disempowerment in mediation.

The mediators revealed that the outcomes in mediation would be different than the outcomes in litigation because of differences in the litigation environment and the mediation environment.  According to the mediators, in litigation, the court maintains a power over the process which limits participation by divorcing couples, hindering the opportunity couples have for making changes to the Standard Possession Order.  Conversely, the mediators state that the mediation environment encourages participation by the divorcing couples, thereby empowering the couples to make contributions to the crafting and molding of unique possessory arrangements for their children. 

The other theme identified by the mediators was the process of disempowerment.  This theme arose as mediators responded to questions regarding the possibility of cases in which mediation may actually be disempowering to parties.  According to the mediators’ descriptions, disempowerment is a process which may occur as a result of several central elements.  The inequality of communication skills of the parties, the lack of skill by attorneys or mediators, and a differential control or power exerted by any of these participants, described as personal characteristics in the present study, all contribute to party disempowerment in mediation.  The mediators also describe the caucus form of mediation, or the mediation structure, as disempowering to divorcing couples.  Additionally, unique issues in some cases, or contextual hindrances, such as substance abuse or the need for supervised visitation may disempower parties in a mediation.

The mediators’ perspectives support the current view of environmental and process issues in divorce, including issues of power, structure and context.  Authoritative behavior and higher financial, educational, and status resources often translate to greater bargaining power for men (Bryan, 1994).  Attorneys for parties in a dispute and mediators have also been known to coerce unknowledgeable or submissive parties into agreements (Welsh, 2004), and at times in ways that violate their best interests (Bryan, 1994; Grillo, 1991).  Therefore, parties, attorneys or mediators may possess and utilize personal or positional power that may then have a disempowering effect upon the other party in a divorce.  To address potential power imbalances between parties, Gewurz (2001) suggests a model for assessment and equalization of party power in mediation.

Second, the mediators in this study hold differing views regarding the use of the shuttle form of mediation mirroring the current literature that is peppered with debate over this form of mediation with those who question its general use (Felstiner & Williams, 1982; Haynes, 1994; Welsh, 2004) and those who maintain its value (Kovach, 1994).  One of the mediators indicated that he exclusively employs shuttle mediation and believes it to be an effective form for negotiation.  However, two of the mediators interviewed maintain that shuttle mediation takes control away from the parties and may therefore be disempowering.  These mediators echoed other critics of the shuttle form by saying that it may be an appropriate dispute resolution technique, but it is not mediation.

A third aspect of the research that relates to the current literature regards mediators' heuristic understanding that interactions and processes used in divorce mediation and the corresponding agreements are somehow different and unique from other forms of negotiation (Hastings, 2005).  The opportunity for active participation and engagement in the negotiation process and for subsequent control over final dispositions is characterized as a structural feature present in mediation but absent in the court environment.  In addition, the mediators in this study report a sense that the mediation environment offers an opportunity for divorcing parties to transcend their differences and collaborate to create a new type of relationship.  This view is elaborated by Bush's and Folger's (1994) framework of transformational mediation which posits that the process of mediation is qualitatively different from other forms of dispute resolution and that mediation has the potential to significantly alter (transform) the relationships between parties.  While the purpose of this research was not to test whether mediation is truly transforming for the parties, the results indicate that the mediators largely believe it to be so.

Limitations

Despite the contributions of the findings to the understanding of empowerment in mediation, the research is limited in scope.  While the narrative analysis informs on some of the dynamics of empowerment in mediation, ultimately it is the disputants’ perceptions of their power that are needed to conclude that empowerment has actually occurred.  While some studies indicate that mediating couples report feeling more involved in the process and in greater control of their outcomes than non-mediating couples (Kelly, 2004), others have not found this to be the case (see Beck & Sales, 2000).  Further research utilizing methodologies that would incorporate disputants’ assessment of their self-determination, such as the evaluation of final dispositions as proposed by previous research, along with a measurable aspect of this self-determination in both mediation and litigation are needed.

Finally, this research represents an initial attempt to explore the structural dynamics of empowerment in mediation.  While qualitative methods are useful for exploratory research (Strauss & Corbin, 1990), as a qualitative study the present study is inherently descriptive and inductive rather than possessing the statistical control that a quantitative analysis could provide.  Therefore, a number of rival explanations could account for the mediator’s descriptions including the problems associated with sampling bias.  That is, as a small, nonrandom sample, it is likely that the group of participating mediators is not representative of the population of family mediators; therefore, their descriptions may be quite different from other mediators in the field.  Thus, despite saturation of the interviewees’ accounts, a larger, more diverse sample would provide a greater measure for consistency across cases and settings (Rubin & Rubin, 1995).  Additionally, in order to generalize the findings to the population of family mediators, it would be necessary to conduct further analyses with a random sample of family mediators.  Another potentially confounding issue in the interpretation of the findings is that the mediators’ accounts may be biased towards mediation.  As stated previously, to fully test this conceptualization of empowerment requires investigations with other groups who may not be as supportive of divorce mediation, particularly disputants.  

Conclusion

The dominant themes of an environmental distinction between mediation and litigation and the process of disempowerment inductively emerged from the narrative data.  These themes encapsulate mediators' explanations of underlying influences and processes at work in divorce cases.  The data supports previous research (Bailey & Robbins, 2005) that conceptualized the empowerment of a divorcing couple as “changes made to the Standard Possession Order” – that is, that modification of the state’s default child possessory arrangements is a reflection of parental power.  The mediators interviewed unanimously agreed with the proposition that mediated cases would result in more changes to the Standard Possession Order, and therefore, mediation participants would more likely be empowered than their non-mediating counterparts.  The mediators described the litigation environment as inherently limiting to party empowerment and the mediation environment as intrinsically empowering for divorcing couples.  By this account, the mediation environment provides divorcing couples greater opportunity to participate in the decision-making process and shifts the locus of control over possessory arrangements from a third party (i.e., a judge) to the parties themselves.  However, the mediators also caution that disempowerment can occur in mediation, thus the mediator must remain educated and aware of potentially disempowering features.  This view supports others in the field, notably Gewurz, who assert that appreciating and addressing power imbalances in mediation is an element to which practitioners must attend.

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