Mediator and Client Communicative Behaviors in Child-Custody Mediation

By Werner, Barbara Lynn | Women and Language, Fall 1994 | Go to article overview

Mediator and Client Communicative Behaviors in Child-Custody Mediation


Werner, Barbara Lynn, Women and Language


Over the last decade, mediation has grown in popularity as an attractive and satisfactory alternative to traditional adversarial procedures. For example, Pearson, Ring & Milne (1983) found a twenty-five percent increase from 1980 to 1981 in the number of divorce mediations conducted in the United States. Research by Pearson and Thoennes (1982a; 1982b; 1984, 1985) shows that individuals with mediated agreements are more satisfied with the process than those who choose traditional adversarial routes. Furthermore, those who come to agreement perceive those agreements as fair and equitable and tend to comply with the decisions made. Additionally, couples who mediate their agreements return to the courts to have those agreements altered much less frequently than those who choose the adversarial system. Saposnek et al., (1984) found that after one year more than half of the agreements reached are still being upheld, about three-fourths of the children involved are doing well in terms of the arrangements worked out by the parents, and that over one-half of those parents who attempt changes in their agreements by themselves are successful.

Communication and Mediation

The role of communication is central in the mediation process. The literature is replete with implicit and explicit discussions on how communication functions within it; discussions of appropriate mediator and client communicative behaviors abound.

Mediator Communicative Behaviors

Theorists and practitioners suggest the mediator 1) help improve communication, 2) identify and/or change communication patterns, 3) establish trust between the two parties, 4) clarify communication, and 5) facilitate and encourage open, direct, communication (cf. Barsky, 1983; Brown, S. M., 1985; Folberg & Taylor, 1984, 1985; Haynes, 1980, 1982; Irving & Benjamin, 1983; Keltner, 1987; Lemmon, 1985; Milne, 1985, 1988). These discussions illustrate the importance of communication, however, they lack clarity in identifying specific communicative behaviors used by the mediator during the mediation process. Recently, efforts have been made to investigate mediator communicative behaviors enacted during successful and unsuccessful mediation sessions. Slaikeu, Culler, Pearson, & Thoennes (1985) found that mediators who are successful spend more time discussing possible solutions and terms of the final agreement and less time making behavioral prescriptions, explaining mediation, and making or requesting disclosures of feelings than do mediators who are unsuccessful.

Jones (1985) found that, compared to mediators who are unsuccessful in their attempts, successful mediators use significantly more "summarizing other" and "search for information" behaviors. They also "praise negotiation behaviors," make "recommendation statements," and "offer suggestions" significantly more than do mediators in unsuccessful sessions. In sum, these studies indicate that, whether successful or not, mediators enact behaviors which promote cooperation between partners. They create an atmosphere where communication is open and information is shared; they urge interactants to discover areas of agreement and help them search for mutually acceptable solutions.

Client Communicative Behaviors

Although by no means are all client behaviors counterproductive, it is these that have been paid particular attention. Theorists and practitioners concur on a variety of behaviors that can be labeled competitive or disruptive to the mediation process. These include: 1) attacking the other person, 2) blaming, fault-finding, accusing, 3) dominating the conversation, 4) interrupting, 5) being critical and judgmental of the other, 6) speaking for the other, and 7) making threats (cf., Beck & Beck, 1985; Brown, E. M., 1982; Girdner, 1985; Haynes, 1983; Keltner, 1987; Milne, 1985, 1988; Moore, 1986; Taylor, 1981, 1988).

As with the work researching specific mediator behaviors, efforts are being made to better understand those behaviors enacted by disputants. …

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