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Vol. 40]
R. PHEGAN – FAMILY MEDIATION
The Family Mediation System: An Art of Dis-
tributions
Ruth Phegan*
The appeal of family mediation lies in its repre-
sentation as an effective means of producing lasting
commitment to peaceful agreement. Family mediation
supporters distinguish among various approaches,
partly to counter a substantial body of mainly feminist
critique of its manipulative and more overtly coercive
practices. Offending approaches are those which
overemphasize therapeutic techniques in the produc-
tion of agreements presumed by the mediator to meet
emotional needs. Approaches which balance law and
therapy, or rights and needs, are said to be empower-
ing. The author argues that so-called balanced, as well
as therapist, mediators deceive themselves and the
public with respect to the nature of their practices.
Manoeuvres for steering clients towards agreement
are governed by systems rationality, not by the inter-
subjectivity which is vital to any process of empow-
erment. Therapeutic and balanced approaches alike
create a number of spatial boundaries according to
interacting principles of behavioural science and law.
Excluding dissent and integrating difference, mediator
operation of these boundaries guarantees widespread
acceptance of mediation as the normal procedure for
(re)constituting family, and the perpetuation of nu-
clear family as the normal family form.
lattrait qu’exerce la m~liation en mati~re fa-
miliale provient du fait que ce mcanisme apparalt
comme un moyen efficace d’amener les parties Zt
s’engager sur la voie d’un r~glement sans heurts de
leurs diff~rends. Afin de contrer les effets d’un large
courant de critique principalement f6ministe selon le-
quel la m&liation familiale cacherait certaines prati-
ques de manipulation et, plus ouvertement, de coerci-
tion, les partisans de la mediation familiale distin-
guent diff6rentes approches. Ces approches critiqu6es
sont celles qui accordent trop d’importance aux tech-
niques th6rapeutiques dans le but de produire des en-
tentes qui, de l’opinion du m&liateur, combleront
certains besoins dmotionnels. Quant aux approches
qui tenent a maintenir l’6quilibre entre le droit et la
thdrapie, les droits et les besoins, elles accordent
beaucoup de pouvoirs aux parties. L’auteure est davis
que
que
memes quant h Ia nature de leurs pratiques respecti-
yes. Plut6t que d’etre rgies par une inter-subjectivit6
essentielle I. tout processus attributif de pouvoirs, les
manreuvres devant amener les clients vers une entente
reposent sur des syst~mes rationnels. Les approches
&luilibristes et th~rapeutiques crient toutes deux un
certain nombre de frontitres conceptuelles reposant
sur des principes interreli~s qui proviennent tant du
droit que de ]a science du comportement. En excluant
la dissension et en int~grant la difference, ]a mise en
place de telles frontitres par le m6diateur garantit
l’acceptation rpandue de ]a m&liation comme proc6-
dure normale permettant de (re)constituer la famille,
et favorise ainsi la perpetuation des familles nucl~ai-
res I. titre de norme familiale.
tant <
ces m~diateurs,
. The author wishes to thank Professor Sheila Noonan for supervising this work in its original
form as part of a thesis for an LL.M. degree at Queen’s University. She also wishes to thank Pro-
fessor Martha Bailey for her contribution as joint supervisor of the thesis, in its early stages, and
Professors Kathleen Lahey, Mary Jane Mossman, Mary Morton and Virginia Barfley for many
helpful comments, on its completion.
McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 40 McGill L.J. 365
Mode de rdf6rence: (1995) 40 R.D. McGill 365
366
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 40
Synopsis
Introduction
I. Enclosing Family
A. Combining Mediator with “The Family”
B. Distinguishing Therapy and Mediation
C. Separating Law and Mediation
D. Conclusion
II. Partitioning Parents and Children
A. Children’s Theoretical Importance
1.
2.
3.
Quantitative over Qualitative Parenting
Fault as Infantasy
Adulteration as Maximization
B. Practising Children’s Best Interests
C. Conclusion
I. Circulating Parental Partners
A. Surface or Two-Dimensional Causation
B. Causation in the Service of Domination
C. Conclusion
Conclusion
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R. PHEGAN – FAMILY MEDIATION
Introduction
Thoughtlessness –
the heedless recklessness or hopeless confusion or
complacent repetition of “truths” which have become trivial and empty –
seems to me among the outstanding characteristics of our time. What I
propose, therefore, is very simple: it is nothing more than to think what we
are doing.
Arendt’
Family mediation is generally represented and promoted as a process
whereby a mediator helps the parties to a separation or related dispute to
reach agreement in a manner superior to litigation. Assistance provided by a
mediator is nonetheless often criticized as manipulative and more obviously
coercive, which calls into question the meaning and effect of both the me-
diation process and the settlement contract signed at its conclusion.2
The Ontario Attorney General’s Advisory Committee on Mediation in
Family Law defined mediation as a “non-adversarial alternative dispute
resolution mechanism in which an impartial mediator assists clients of a
relatively equal bargaining position, to reach a mutually satisfactory agree-
ment on issues affecting the family.”3 The Committee members attempted to
close the gap between the reality of mediation practices and their own de-
scription thereof by explaining that, in part, mediation had “[come] to be
defined by what Committee members hoped it could achieve. ‘ 4 However,
underpinning much of the Committee members’ understanding of the prac-
tices they promote is an expectation disconnected from experience. The rea-
soning behind such attribution is indicative of that which pervades the Re-
‘H. Arendt, The Human Condition (Chicago: University of Chicago Press, 1958) at 5.
See M. Bailey, “Unpacking the ‘Rational Alternative’: A Critical Review of Family Mediation
Movement Claims” (1989) 8 Can. J. Fain. L. 61; M. Shaffer, “Divorce Mediation: A Feminist
Perspective” (1988) 46 U. T. Fac. L. Rev. 162; N.Z. Hilton, “Mediating Wife Assault: Battered
Women and the ‘New Family’
(1991) 9 Can. J. Fam. L. 29; M. Arsenault, “Mediation and
Abused Women: Who’s Looking Out for Their Safety?” (1990) 8:2 Vis-a-Vis 5; M.L. Fassel &
D. Majury, “Against Women’s Interests: An Issues Paper on Joint Custody and Mediation”
(National Action Committee on the Status of Women, April 1987) [unpublished]; D. Majury,
“Unconscionability in an Equality Context” (1991) 7 Can. Fain. L.Q. 123.
Ontario, Report of the Attorney General’s Advisory Committee on Mediation in Family Law
(Toronto: Ministry of the Attorney General, 1989) at 6 [hereinafter Advisory Committee Report or
Report]. The Advisory Committee was established in 1987 to examine the role and function of
family mediation. The Committee’s Report endorsed family mediaton in Ontario as a positive de-
velopment, and as a process for which no evidence existed at that time of its potential to work
hardship on its clients (ibid. at 7). It recommended that mediation services be delivered as needed
across the province (ibid. at 20).
4 Ibid. at 57.
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port.5 Where attention is given to mediation experience, and such experience
evidences harm, it is attributed to jurisdictions outside Ontario. Conse-
quently, the Report contributes to the administrative rationalization of me-
diation’s domination, in which federal and provincial legislatures and the
judiciary are complicit, and to the production of client docility. In so doing,
the Report becomes an exercise of the kind of power so artfully portrayed
by Foucault.6
I argue that dominant mediation practices, in Ontario as elsewhere, con-
tinue to manipulate and subvert the meaning of agreement. Mediation may
be a gentler technique than the system of juridical right, but equating
‘gentler practices’ with ‘more humane’ leaves paternalism, and the violence
it sometimes more and sometimes less successfully masks, steadfastly in
place. Mediation practices are governed by the instrumental rationality of a
system which is maintained by virtue of its ability to produce settlement
contracts, and which is operated in such a way as to require client confor-
mity with the imperative of settlement. Inter-subjective or dialogical dis-
cussion,7 necessary for meaningful autonomy and responsibility, is subverted
Thus “mediation in the criminal process” in the U.S., for example, is to be distinguished from
“mediation in family law” in Ontario. The purpose of distinguishing the criminal process and
family law is to counter arguments made in feminist critique with respect to damage done to
women and children by mediation of family relationships where violence has been experienced
(ibid. at 33-40). To answer concerns with respect to other forms of gender based inequality, a U.S.
practice of utilising a single advisory attorney to review settlement agreements is to be distin-
guished from Canadian practices which allow parties to be advised by their individual lawyers
(ibid. at 40-41); and mandatory mediation, practised in some U.S. states and in Manitoba, is to be
distinguished from compulsory initial “educative” sessions envisaged for Ontario’s separating
families (ibid. at 66-73).
‘ M. Foucault, Discipline and Punish: The Birth of the Prison, trans. A. Sheridan (New York,
Vintage, 1979) [hereinafter Discipline and Punish].
7 A dialogic ethic, which should guide mediation, is explained by Nancy Fraser as one which
takes into account the fact that dominant and subordinated groups stand in different and unequal
relations to what she calls “the socio-cultural means of interpretation and communication,” for
example:
Mhe officially recognized vocabularies in which one can press claims; the idioms
available for interpreting and communicating one’s needs; the established narrative
conventions available for constructing the individual and collective histories which
are constitutive of social identity; the paradigms of argumentation accepted as
authoritative in adjudicating conflicting claims; the ways in which various dis-
courses constitute their respective subject matters as specific sorts of objects; the
repertory of available rhetorical devices; the bodily and gestural dimensions of
speech which are associated in a given society with authority and conviction (N.
Fraser, “Toward a Discourse Ethic of Solidarity” (1986) 5:4 Praxis International
425).
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R. PHEGAN – FAMILY MEDIATION
369
by that imperative. The system perpetuates a number of spatial boundaries,
such as the mediation/litigation boundary, to ensure that what is included in
or excluded from family mediation is self-perpetuating and productive of
‘agreement’ to the continuation and proliferation of the inequalities pro-
tected by family.
In support of this claim, I compare three approaches to family media-
tion, chosen in part to test the theory of feminist mediator and critic, Linda
Girdner.8 Girdner’s theory plots mediator emphasis along two axes: law and
therapy are the poles of one axis; self-determination and coercion are the
poles of the other. According to the theory, coercive therapist-mediators are
those who, within a family systems paradigm, focus on the psychological
aspects of divorce, advocate children’s interests, and are committed to the
specific outcome of shared parenting. Their focus on these aspects can result
in a coalition between mediators and fathers against mothers.9 In compari-
son, Girdner suggests that the mediator who practises a balanced and em-
powering form of mediation operates at the centre of these axes. With re-
spect to the law/therapy axis,’0 this mediator emphasizes rights and needs,
external and internal criteria of fairness, and cognitive and affective aspects
of disputes. With respect to the self-determination/coercion axis, she or he
emphasizes process over any specific outcome, but also acts as an agent of
social control: she or he keeps children’s needs at the forefront of custody
disputes, yet does not assume to be the final authority on a particular child’s
best interests.”
One of the three approaches to family mediation which I examine within
the context of Girdner’s schema is the family therapy model used and de-
veloped by Irving and Benjamin.’ 2 Situated at the therapy end of Girdner’s
‘ L.K. Girdner, “Custody Mediation in the United States: Empowerment or Social Control?”
(1989) 3 C.J.W.L. 134.
” Ibid. at 144. The lawyer-mediator can also be coercive. Utilising a conflict-bargaining para-
digm, she or he is more likely to focus on the legal issues, advocate for the process, and treat
children as another bargaining chip. However, there are few mediators in this category as those
who begin at the law pole of the axis tend to move towards the centre as they gain experience in
the field (ibid. at 141).
” This axis is commonly referred to in mediation literature as the bargaining/therapy axis (see
e.g. S.S. Silbey & S.E. Merry, “Mediator Settlement Strategies” (1986) L. & Pol’y 7 at 8).
“Girdner, supra note 8 at 139-42.
12 H. Irving & M. Benjamin, Family Mediation: Theory & Practice of Dispute Resolution
(Toronto: Carswell, 1987) [hereinafter Family Mediation]. The theoretical and operational prin-
ciples described in this work presumably influence Irving’s Toronto-based training of many Ca-
nadian mediators. As Professor C. James Richardson notes, “through his writing and lectures,
[he] has had a dominant influence on the field” (Canada, Department of Justice, Court-based Di-
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law-therapy axis, Therapeutic Family Mediation (TFM) is potentially a
model of coercive practices. The second approach, the procedural model of
Christopher Moore, 3 draws predominantly on dispute resolution techniques
developed in labour negotiation.'” This model also borrows from techniques
emphasized in several other family mediation models, and from family ther-
apy literature. Situated at the centre of the axis, it is potentially a model of
empowering practices. The third approach, also in the centre position, is that
of Landau, Bartoletti and Mesbur 5 Their model is not labelled by its de-
signers but their “Handbook” does locate their approach in a blend of family
law and family therapy principles and procedures. The therapy model and
both of the balanced models use many of the same techniques and dominant
theories and practices. My analysis of the general principles and practices of
these models exposes how all three operate to silence and exclude certain
voices and concerns, particularly those of women, insofar as these perspec-
tives are unproductive of the mediation system’s goals.
A fundamental concept in Irving and Benjamin’s therapy model is
“systems”, which is defined “in terms of participation.”‘ 6 This definition
implies that, for the practitioner of TFM, the family system, rather than the
husband or wife, is the mediation client; while the practitioner may respond
to each client’s pain, she or he must never lose sight of the larger whole.
Further, the mediator must tap the emotional substratum of contentious is-
sues in order to discover any underlying interaction, effect, and/or mean-
vorce Mediation in Four Canadian Cities: An Overview of Research Results by C.J. Richardson
(Ottawa: Supply and Services Canada, 1988) at 16).
13 C. Moore, The Mediation Process: Practical Strategies for Resolving Conflict (San Fran-
cisco: Jossey-Bass, 1986) [hereinafter The Mediation Process]. Moore’s book covers generally
the practice of mediation, its process and theory, as relevant to labour, family, organizational, en-
vironmental, public policy, community, and other areas. The Advisory Committee Report, supra
note 3 at 22, reproduces a 12-stage chart used by Moore to outline his model, referring to it as “an
excellent portrayal of what mediation is and how it operates as a dispute resolving process.”
Moore deals specifically with family mediation in ‘Techniques to Break Impasse” in J. Folberg &
A. Milne, eds., Divorce Mediation: Theory and Practice (New York: The Guilford Press, 1988)
251 [hereinafter Divorce Mediation]. While Moore does not expressly propose that his approach
be regarded as a model, his explication of the mediation process fulfils the three requirements of a
model articulated by Irving & Benjamin: that it describe the processes involved in case handling;
that it take a position on ethical issues; and that it generate or adhere to some theory of how client
couples or families work (see Family Mediation, supra note 12 at 55-56).
“See e.g. R. Fisher, International Mediation: A Working Guide (New York: International Peace
Academy, 1978).
I5 B. Landau, M. Bartoletti & R. Mesbur, Family Mediation Handbook (Toronto: Butterworths,
1987).
16 Family Mediation, supra note 12 at 179.
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R. PHEGAN – FAMILY MEDIATION
I argue that the TFM family system is not defined in terms of participa-
tion, as its designers assert; rather, participation is defined in terms of the
family system. Emotional issues are discussed, not according to an inter-
subjective or dialogical ethic, but largely according to a regulation of indi-
vidual decisions which goes beyond client awareness. The particular emo-
tional issues discussed during mediation will be selected according to their
potential for maintaining TFM’s boundaries and goals. Since these bounda-
ries and goals are incapable of being empirically ascertained, they are
stipulated or set by TFM designers and practitioners.’ 8 In purporting to lib-
erate client men and women from the repressive scripts of their rationality
and emotions, Therapeutic Family Mediation encodes another rationality,
another “hysteria”. It encodes, despite Foucault, another repression. 9
Similar processes are at work in the “balanced” models. Of fundamental
importance in Moore’s procedural model are mediator interventions in-
tended to shift clients from a mode of bargaining based on dissent –
and
characterized by Moore as conflict-provoking and/or escalating –
to con-
sensus- or interest-based bargaining. Client partiality for normative judg-
ment is identified as a central obstacle to interest-based bargaining.
The procedural model’s array of techniques for breaking impasse ma-
nipulates clients into accepting consensus-based bargaining as the appropri-
ate way of conceptualizing the interaction of consent and dissent in negotiat-
ing a resolution of family separation problems. Although Moore occasion-
ally refers to the relationship between procedures and their underlying val-
ues, he does not question the values which underlie his choice of consensus-
based bargaining coupled with therapy for resolving family disputes.
7 Ibid. at 78.
“Thomas McCarthy refers to this aspect of systems-objective decisionmaking in “Complexity
and Democracy, or The Seducements of Systems Theory” (1985) 35 New German Critique 27
at 47.
’91 say “despite Foucault” because Foucault has doubts about the value of the word ‘repression’
in view of its double reference to sovereignty and normalization:
I believe that the notion of repression remains a juridical-disciplinary notion what-
ever the critical use one would make of it. To this extent the critical application of
the notion of repression is found to be vitiated and nullified from the outset by the
two-fold juridical and disciplinary reference it contains to sovereignty on the one
hand and to normalisation on the other (M. Foucault, ‘Two Lectures” in C. Gor-
don, ed., Power/Knowledge: Selected Interviews and Other Writings 1972-1977
(New York: Pantheon Books, 1980) 78 at 108 [hereinafter ‘Two Lectures”]).
20 The Mediation Process, supra note 13 at 178.
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Another aspect of mediation is the “new” conceptualization of contrac-
tual responsibility prominent in the other balanced approach. According to
Landau, Bartoletti and Mesbur, law and therapy principles, of primary im-
portance to their approach, have shifted focus from preserving marriage and
treating emotionally disturbed persons to new formulations based on the
freedom of adults to choose whether or not to remain married,” the dys-
function of the family system, and the need for therapeutic change. The
family can thus be helped to take responsibility through the notion of
“self’. 22 This model, which I term the contracted responsibility model, 2 per-
petuates a fundamentally liberal, and therefore distorted, notion of freedom
and responsibility. The freedom or rights protected by mediation contracts
are those of the mediation system itself and of those client groups favoured
by the mediation system. As a result, client groups not favoured by media-
tion are burdened with unwanted contractual obligations. Operating under
the power and privilege of their contractual rights, mediators use the thera-
peutic techniques at their disposal to ensure the functional processing of this
unequal arrangement.
This article compares the approaches of the various models in relation to
a number of spatial boundaries. The first section examines a set of inter-
systemic boundaries (i.e. the means whereby people connected with, but ex-
traneous to, family and the mediation process are defined, separated and/or
combined). In particular, the roles of clients’ parents and new partners,
therapists and lawyers are discussed. The second section deals with sub-
systemic boundaries, specifically the various ways parent-child relationships
are conceptualized and the consequences of such conceptualizations for
children’s participation in decisions about custody and access. The last sec-
tion focuses on sub-systemic boundaries with respect to the husband-wife
relationship. In this regard, mediators concentrate not so much on how two
people interact as on a single interaction. A modem version of “they both
shall be one flesh” reverberates through mediator discussion of how the
spouses interact, both inside and outside the mediation procedure. All of
these boundaries shift in accordance with the parameters governing each of
“1 This is best expressed in mediated domestic contracts (see Landau, Bartoletti & Mesbur, su-
pra note 15 at 1-4). The authors also draw attention to the influence of labour negotiations on
law’s recognition of mediation as a mode of alternative dispute resolution suited to “ongoing”
family relationships.
2 Ibid. at 6-10.
31 use the name “contracted responsibility” not only to suggest a responsibility which has been
narrowed to clients, and often ultimately to one client, the wife, but also to suggest a contagious
illness.
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R. PHEGAN – FAMILY MEDIATION
the three models, and with all the dominant approaches to mediation.
I. Enclosing Family
Discipline sometimes required enclosure, the specification of a place het-
erogeneous to all others and closed in upon itself.
Foucaulte
In family mediation, inter-systemic boundaries are a means of control-
ling external influences exerting pressure on family mediation. These
boundaries are drawn (and/or erased) by mediators as they distinguish
(and/or merge) family and extra-family, mediation and therapy, and media-
tion and law. The purpose here is to illuminate how these boundaries are
drawn and whether they are consistent with the principle of client participa-
tion. Each mediation model segregates or merges significant actors and
spheres of action within the process of family mediation. Specifically, each
model is examined in relation to the determination of family membership
for the purposes of mediating separation disputes, and in relation to the roles
of therapist and lawyer in the mediation process. I argue that, notwithstand-
ing differences between particular practice models, planned manoeuvres by
the mediator are common to all. The models discussed subvert more than
address client concerns that are incompatible with the general mediation im-
perative of agreement to mediation and to binuclear family.
A. Combining Mediator with “The Family”
In Irving and Benjamin’s therapy model, TFM, the mediator appropri-
ates to himself or herself relevant decision-making power with respect to
internal and external determinants of family boundaries. That appropriation
is clearly influenced by the way General Systems Theory, which informs
TFM, conceptualizes the inter-systemic aspect of boundaries:
Patterning in the interaction among family members necessarily means that
they interact with each other in ways that are both qualitatively and quanti-
tatively different from the way they relate to people outside the system. In
this sense, family members are bounded or constrained by the nature of
their mutual relationship.
The bounded nature of family systems serves simultaneously to delimit
the extent of the system in question (who is in) and to differentiate it from
24Discipline and Punish, supra note 6 at 141.
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all other systems (who is out).’
This conceptualization is vague and potentially restrictive. If family is de-
fined by the nature of the relationship of its members –
one that is differ-
ent, both qualitatively and quantitatively, from how members relate to out-
siders –
then these qualitative and quantitative signs must be read. How are
they read and by whom?
Benjamin’s elaboration of the passage quoted does not directly answer
these questions. He leaves the notion of family unclear, merely “relating”
variation in the degree of family permeability (i.e. the degree of freedom
with which someone moves into or out of the family system) to the degree
of family organization. He further states that the degree of family organiza-
tion partly determines the permeability of family boundaries, adding that
other systems, “in particular cultural, ethnic and occupational systems, 2 6
may also influence boundaries. He does not, however, explain in what cir-
cumstances cultural and occupational systems would not determine family
boundaries, nor does he consider that family members may make conscious
decisions about the degree of organization or permeability desired. Thus,
General Systems Theory seems to invite an additional interpreter of family,
one who is an expert on the nature of family relationships and constitution,
to circumscribe family boundaries.
Irving and Benjamin, as therapeutic mediators, profess to have such ex-
pertise. Their mediation model assumes that the nuclear family form is, and
will continue to be, the type of family processed by the therapist-mediator.
The notion of nuclear family undergoes a ‘superliberal’ adjustment.27 Irving
and Benjamin discard the notion of parental roles which is widely accepted
‘ M. Benjamin, “General Systems Theory, Family Systems Theories, and Family Therapy:
Towards an Integrated Model of Family Process” in A. Bross, ed., Family Therapy: A Recursive
Model of Strategic Practice (Toronto: Methuen, 1982) 34 at 47.
26Ibid. at 47 [references omitted].
7We refer to the adjustment as ‘superliberal’, a term borrowed from R.M. Unger, “The Critical
Legal Studies Movement” (1983) 96 Harv. L. Rev. 563, partly because TFM denies as authorita-
tive feminist arguments for addressing the impact of structural inequality on women as a group.
That denial in turn perpetuates the denial to women, upon separation, of the opportunity to re-
structure their lives towards more meaningful equality. TFM views separation as merely a step
towards recombining and multiplying nuclear family. Spousal differences acknowledged by TFM
are individual differences with, more recently, the addition of a few selective gender differences
(see M. Benjamin & H. Irving, “Toward a Feminist-Informed Model of Therapeutic Family Me-
diation” (1992) 10 Mediation Q. 129 [hereinafter “Feminist-Informed TFM”). Focus on individ-
ual differences tells us that gender is indeed a production; it produces the simplistic idea that
treating women and men as already equal will produce/reproduce equality.
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R. PHEGAN – FAMILY MEDIATION
in non-systemic approaches to family conflict,28 and criticize differentiation
on the basis of gender with respect to parental behaviour, skills and quali-
ties:
Sure, mothers can be supportive and nurturing. But they can also be angry,
aggressive, incompetent, helpless, dependent and a lot of other things de-
pending on the time of day, who [sic] they are dealing with and especially
the patterns of interaction which constrain life in their family. Fathers, too,
show incredible diversity. Some are strong and logical, others are not, and
some are supportive and nurturing which does not make them mothers but
is somehow not expected of fathers.29
Despite this rejection of roles, Irving and Benjamin still identify mother,
father and children as the main actors in the family system, and do so in a
society still dominated by men. Attention is given to extra-systemic family
particularly significant to single-parent families and the many nuclear
–
families in which parents are not mutually supportive –
only where such
attention contributes to the problem-solving process, and regardless of how
extra-family or nuclear members view family boundaries.
The superliberal progression of the family system beyond the static
structure of the simple liberal family is marked by ever-moving and multi-
plying relationships. Within these relationships, the idea of determinants
gives way to that of influences. In systems theory, influence signifies reci-
procity. However, since external influence is presented in TFM as relevant
only to the family’s ability to cope with it, the theory never clarifies pre-
cisely who is influencing or making demands on the family. Thus, the im-
portant elements for TFM with respect to external demand are not just recip-
rocal influences, but rather the degree of the family’s internal preparedness,
and the extent of the family’s internal response repertoire.0 In the specific
context of mediation, sources of external influence are discussed only if the
family cannot cope with them despite the mediator’s efforts to raise the
family’s level of preparedness and to extend its response repertoire. Even
then, an external influence is admitted only so that it might be co-opted or
8 Irving & Benjamin, Family Mediation, supra note 12 at 56-62, critique four dominant me-
diation models: structural, labour, social psychological, and strategic. Despite any use of and/or
appeal to systems theory and concepts by these models, their individualist, rather than relational,
perspectives on care prevent their being viewed by Irving & Benjamin as truly systemic. The
major boundary-drawing of all four models is governed by the family mediation system’s rela-
tional parameters, whatever the model’s shortcomings regarding systems purity (or regarding
Irving and Benjamin’s interpretation of systems purity).
9 Ibid. at 69.
” Ibid. at 70-77.
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explicitly excluded.
grandparents for example –
Professing to follow Salvador Minuchin, Irving and Benjamin recom-
mend excluding relatives –
by giving them
the message that they should simply lend their power to their daughter or
son in order to allow her or him to resolve problems.3 This tactic is used in
the full-length case study of Maria and John Smith reported by Irving and
Benjamin. The report does not explain how the Smiths came to be referred
to the mediator, but simply states that the couple was “referred for marital
counselling following Maria’s decision to separate from John. 32
From Irving and Benjamin’s report of the case study, Maria Smith
makes it clear that she wants custody of the two children. John Smith admits
to using sole custody, among other things, to threaten Maria. In order to en-
sure a rational custody decision, the therapist-mediator puts both clients into
therapy. John’s threats and difficulty in expressing himself indicate to the
mediator that he is not sufficiently individuated from Maria emotionally to
allow rational discussion and decision-making. However, the therapist-
mediator requires a different justification for subjecting Maria to therapy,
given her clearly articulated expectations of mediation and her future plans
with a new husband. Consequently, she is assessed as needing therapy to en-
able her to separate emotionally from a ‘controlling’ mother, even though
she explains that she has established close contact with her parents as a re-
sult of her separation.33
Apparently, therapy successfully raises the Smiths’ preparedness for, and
extends their ability to cope with, a demand for joint custody. However,
when Maria’s level of preparedness drops again, her mother is brought into
mediation. “The potency of the coalition between daughter and mother was
clear” ‘4 to the mediator: Maria and her mother thought it best for the chil-
dren that they remain with Maria, and Maria’s mother would interrupt John
“by talking loudly to Maria in Italian.”35 By asking Maria’s mother to lend
some wisdom and authority to her daughter, the mediator “effectively al-
lowed Maria to proceed with her initial inclination, to allow John access,
” S. Minuchin, Families and Family Therapy (Cambridge: Harvard University Press, 1974) at
95. Minuchin in fact recognizes the importance of “extra” family, but his focus is marital therapy
for intact families, as distinct from separation mediation (see Family Mediation, ibid. at 183).
12 Family Mediation, ibid. at 113.
331bid. at 113-29.
Ibid. at 125.
35 Ibid.
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while blocking the grandmother from further interference. 36
The basis for the therapist-mediator’s conclusion that Maria’s mother is
controlling is not provided in Irving and Benjamin’s report. We are told that
Maria is “of Italian extraction”; John is “of English extraction”. We are also
told, however, that Maria’s mother only accepted her daughter’s new rela-
tionship when the parish priest assured her that the Smith marriage could be
annulled.37 Irving and Benjamin’s constant references to Maria’s Italian
background, including the reference to the family religion, in no way indi-
cate a concern for mediator or client understanding of how this cultural
background might be connected, if at all, to the issue of custody. The refer-
ences appear as innuendo and, whether or not they are aimed at readers’
prejudices, they assuredly indicate that the therapist-mediator prejudged
Maria’s mother; that the strictly nuclear family is the preferred family ar-
rangement, irrespective of the Smiths’ mixed cultural backgrounds; and that
mediator prejudgment has replaced mediator-client and client-client dia-
logue. We do not hear Maria articulate her view of her “origins” with re-
spect to the inclusion of her mother in the mediated family. Nor do we hear
John’s voice. Rather, the case is an example of how the instrumental ra-
tionality of the family mediation system governs participation in the thera-
peutic approach and contributes to my assessment of TFM as a monological
process.
Christopher Moore’s procedural model does not articulate a theory of
family. It is, nonetheless, based on dominant assumptions about family or-
ganization and constitution. Further, while more sensitive than TFM to the
possibility that clients may themselves know whom they want to include in
family mediation, the procedural model makes it clear that the mediator
should decide the issue.
Moore couples the mediator and the family through his emphasis on dis-
putants as negotiators. Having created a temporary bargaining relationship,
disputants usually extend that relationship to include the mediator “[w]hen
[they] no longer believe that they can handle the conflict on their own and
when the only means of resolution appears to involve impartial third-party
assistance.”3
36Ibid.
37Ibid. at 113, 115.
3” The Mediation Process, supra note 13 at 6.
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Moore identifies only one potential problem with respect to defining
“family” for the purposes of participating in family separation and related
negotiations. This sole example is perhaps indicative of his easy acceptance
that the mediator need only deal with the superliberal nuclear family. He
states that, while it is apparent that husband and wife participate in divorce
negotiations, it is more difficult to identify the central parties to child cus-
tody cases revising visitation rights as “the second wife of the divorced hus-
band may want to participate in negotiations.”39 Moore not only omits any
argument regarding the inclusion of new spouses in mediation, he fails to
explain how the procedural mediator might assist parties to settle disputes
regarding negotiator boundaries.
Further, Moore asserts that the mediator should help the parties choose
the participants rather than choosing them himself or herself, but then un-
dercuts his assertion by listing the kind of participant whom mediators
usually request. The list includes: participants with direct involvement in a
dispute (as defined by their central interests in the outcome); persons with
decision-making authority; persons who contribute positively to decision-
making; and persons who will respect negotiating etiquette. 40 To the extent
that these suitability criteria are insufficient to determine who is to be in-
cluded, Moore sets out a governing principle that inclusion or exclusion of
family members, friends, and other influences on parties’ opinions should
turn on the mediator’s assessment of whether such influences will induce
settlement: “[t]he mediator can often engineer the form and effect of asso-
ciational influence. 4′
Landau, Bartoletti and Mesbur’s contracted responsibility model
“balances” legal techniques and therapy techniques. Legal techniques blend
individual contracts with the social contract, whereas therapy techniques en-
courage clients to take more personal responsibility for decision-making.
Further, this model blends techniques in such a way as to ensure that the
” Ibid. at 105. Irving & Benjamin, Family Mediation, supra note 12 at 182, see a use for
bringing the wife’s “new intimate partner” into mediation because his presence shows the hus-
band how much less fearful a figure the new partner is in the flesh than in fantasy. However, the
new partner does not appear in any of the TFM case vignettes or in the full-length case study.
Since, in the Smith case study, Maria’s husband has threatened to harm her new partner, it is per-
haps understandable that the new partner is not admitted to mediation proceedings.
40The Mediation Process, ibid. at 107.
41 Ibid. at 274.
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professional (i.e. the mediator) determines questions of family structure and
of its mediation.
With respect to the legal emphasis on individual contract, the retainer
contract between clients and mediator expresses the right of the mediator
at any time to include in the mediation the child(ren) or any other signifi-
cant third party, such as a new partner, grandparents, other relatives, legal
counsel, a chartered accountant, or other significant involved persons as
the mediator deems necessary.42
For its part, the therapy-mediation blend has, according to Landau, Bar-
toletti and Mesbur, brought about an awareness that there really is no such
thing as a single-parent family, at least not in the broken marriage context.43
The mediator’s legal right to select participants implies a corresponding
client duty to accept that selection. Indeed, the model’s non-recognition of
the single-parent family implies a belief in the superiority of professional
knowledge of what constitutes family. This non-recognition is reflected in
the fact that significant caregivers’ inclusion in the mediation process is sec-
ondary to the inclusion of new partners. Further, the notion of professional
knowledge as superior is reflected in Landau, Bartoletti and Mesbur’s inti-
mation that only the mediator, to the exclusion of the parties, would meet
with any additional participants. 44
If grandparents (or other relatives or friends) are treated by the mediator
as secondary to new partners, if clients are not even included in certain
meetings, and if clients are not informed of these facts before signing the
retainer contract, the validity of the contract is questionable. To the extent
that the mediator and the client’s minds meet regarding participant selection,
the contracted responsibility model gives little indication that they do so be-
fore the retainer contract is signed. Minds which meet other than coinciden-
tally seem to do so, rather, as a consequence of therapist-mediator tactics.
These tactics purport to encourage client responsibility for decision-making,
but actually exclude the client’s knowledge of and participation in funda-
42 Landau, Bartoletti & Mesbur, supra note 15 at 213, 216. The provision reads similarly in
Landau, Bartoletti & Mesbur’s samples of both closed and open mediation contracts (apart from
omitting a chartered accountant in the latter). Since open mediation allows mediators to include in
their recommendations to the court (i.e. their assessments or reports) any information they con-
sider relevant to the issues mediated, Landau, Bartoletti & Mesbur’s retainer contract for open
mediation can be, and is, used alternatively for assessment without substantive changes.
43 Ibid. at 10.
” Ibid. at 60.
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mental aspects of such decision-making.
B. Distinguishing Therapy and Mediation
Another group targeted by mediation’s exclusionary tactics is therapists.
The mediation process is threatened by a client’s therapist insofar as the
mediator’s psychological beliefs and therapeutic practices are inconsistent
with those of the therapist.
A client’s therapist is regarded by Landau, Bartoletti and Mesbur as ex-
ternal to the mediation process. Coming under the heading of “other signifi-
cant involved persons” for the purposes of the retainer contract,45 the thera-
pist’s contribution is governed entirely by the mediator. The mediator, by
means of a telephone call, obtains from the therapist “information about
[children and parents’] emotional needs, family relationships and other
matters relevant to parenting arrangements. 46 In other words, the therapist
merely provides data to the mediator, when asked by the mediator, for proc-
essing by the mediator. Limited in this way, the therapist’s emotional sup-
port or counselling of the individual client remains outside the mediation
process. Further, the data implies that the data the therapist provides is insu-
lated from objection by the client, while its processing is insulated from ob-
jection by the therapist. Treating the therapist as an outsider is consistent
with the importance placed by Landau, Bartoletti and Mesbur on blending
mediation with family therapy objectives and techniques. The blend can be
used to ensure that in mediation, as in family therapy, the individual is sub-
sumed within the family; that upon the breakdown of marriage “there really
is no such thing as a ‘single parent’ family., 47
The blend simultaneously ensures that mediators can practise therapy
while representing mediation as distinct from therapy. According to Landau,
Bartoletti and Mesbur, “[flamily mediation can be represented best as the
flip-side of the professional coin to family therapy,, 48 and the mediator is to
be understood as educator, fact-gatherer and communicator.49 Richardson
4
3 See text accompanying supra note 42.
‘ Landau, Bartoletti & Mesbur, supra note 15 at 60.
47 Ibid. at 10.
4
1 Ibid. at 9.
4 Ibid. at 65-68. Landau, Bartoletti & Mesbur’s ambiguity or confusion with respect to media-
tion as partly therapy is shared by the Attorney General’s Advisory Committee. The Committee
reports that “[w]hile the process is not psychotherapy or counselling, it may include gaining the
understanding that personality, anger or other motivations are part of the underlying problem or
conflict” (Advisory Committee Report, supra note 3 at 22).
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sums up the mediation-therapy distinction: “In short, in a legal system in
which cases, except for a most vexatious minority, have beginnings and
endings, it is much easier to sell mediation than conciliation counselling.”5
He concludes that any shift in Canada from a therapeutic counselling model
“is more one of terminology than of approach, since to date the field re-
mains more exclusively the preserve of those trained in the mental health
disciplines.”‘”
While Landau, Bartoletti and Mesbur’s position on mediation and ther-
apy is ambiguous and confused, Christopher Moore’s position is self-
contradictory. He both acknowledges and rejects the proposition that proce-
dural mediation is therapy. This acknowledgement appears necessary to ex-
plain the fundamental subjects and methods of his interventions. His rejec-
tion no doubt better enables him also to sell his services.
On the one hand, Moore refers to several tenets of psychology, tenets
which he adopts and adapts to his procedural approach. He states that
“[n]egotiation has long been recognized as a psychological process,” citing
as support the work of social psychologists Rubin and Brown who identify
over 500 studies on negotiation which examine individual psychological
variables and group dynamics.5
‘ Further, Moore devotes a full chapter of his
book to conciliation, which he considers to be an ongoing process through-
out mediation and
essentially an applied psychological tactic aimed at correcting perceptions,
reducing unreasonable fears, and improving communication to an extent
that permits reasonable discussion to take place and, in fact, makes rational
bargaining possible. 3
On the other hand, Moore seems anxious to dispel any suspicion that
therapy might be part and parcel of what he practises. “Mediation is not a
therapeutic process,” he states, adding that if therapist involvement in nego-
tiations is acceptable to all parties and of assistance to disputants with emo-
o Richardson, supra note 12 at 16.
SI Ibid. at 46-47. In Richardson’s opinion, the approach to mediation in Canada should remain
therapeutic.
2 The Mediation Process, supra note 13 at 124, citing J. Rubin & B. Brown, Social Psychology
ofBargaining and Negotiation (New York: Academic Press, 1975).
” The Mediation Process, ibid. at 124, citing A. Curle, Making Peace (London: Tavistock,
1971) at 177.
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tional and psychological problems, then it may benefit the mediation proc-
ess.
54
Moore’s position on therapist involvement is consistent with his position
on extra-family involvement. He does not discuss the criteria which must be
evidenced by a disputant desiring the involvement of his or her therapist.
However, in order to protect cooperation and integration, he does caution
against unrestricted involvement of a client’s therapist. The protection of
cooperation and integration is thus more important to the mediation proce-
dure than is a disputant’s own assessment of her or his needs.
Irving and Benjamin openly acknowledge that family mediation is also ther-
apy.55 The TFM mediator is expressly and unabashedly also a therapist, al-
though whether she or he is so described to clients is not clear. The authors
identify mediators’ narrow understanding of the notion of therapy as the un-
derlying factor in the debate about whether mediation is also therapy. Some
mediators equate therapy with traditional psychotherapy (i.e. with practices
aimed at producing insight combined with personality transformation) but
not with practices aimed at behavioural change. Failure to acknowledge both
kinds of practices as therapy is problematic, considering that many family
therapists explicitly reject personality transformation or the achievement of
insight as goals of their own practices.56
Irving and Benjamin’s alternative view is that family mediation “is ex-
plicitly therapeutic insofar as it addresses emotional issues as deemed neces-
sary. 517 Although this frankness is preferable to the furtiveness or ambiguity
of most mediation theorists, their attraction to therapy is an endorsement of
their own expertise (i.e. of the mediator’s own opinion of when therapy is
necessary and of the form it should take). Like Landau, Bartoletti and Mes-
bur and Moore, Irving and Benjamin substitute their knowledge for that of
the client’s therapist, and, of course, for that of the individual client. Indeed,
if the interventions of an independent therapist in any way conflict with
5 The Mediation Process, ibid. at 108-109.
55For a discussion of the importance of therapy, see Family Mediation, supra note 12 at 80-81.
6 Ibid. at 53, 80-81. Joan Kelly, a member of the Ontario Attorney General’s Advisory Com-
mittee on Mediation in Family Law, is cited by Irving & Benjamin as one who equates therapy
with psychotherapy (J.B. Kelly, “Mediation and Psychotherapy: Distinguishing the Differences”
(1983) 1 Mediation Q. 33 at 34-35). The differences of which she writes also reduce to a central
distinction between direct and indirect therapy.
” Family Mediation, ibid. at 53.
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R. PHEGAN – FAMILY MEDIATION
those of the TFM mediator, the therapist is to be made aware of how she or
he is contributing to family dysfunction.”
Psychological tactics are deeply imbedded in human communication. To
focus on where and how mediators draw boundaries between mediation and
therapy is to focus on their evasion of the extent to which therapeutic tech-
niques are used in mediation. If clients are unaware that they are contracting
for therapy, and if the public is unaware that government is promoting, and
in some cases enforcing, therapy, neither separation contracts, nor the social
contract on which they are based, can be valid.
C. Separating Law and Mediation
Law is also an integral part of our communications. Whether or not the
mediator is a qualified lawyer; whether or not professional codes of conduct
demarcate mediation from legal practice (on the basis of a narrow and posi-
tivist understanding of “advice”); and whether or not mediators observe
those ethical codes, the mediator is dealing with issues of law. Such issues
are not restricted to group convention; 9 they are also regulated by the legal
rules and boundaries of the state. By choosing tactics over advice as the pre-
ferred means of contributing to client decisions about legal issues, mediators
mask their value judgments and the systemic partiality of their interventions.
How do the three mediation models exclude or admit lawyers in their
practices? With respect to the contracted responsibility model, Landau,
Bartoletti and Mesbur state that it is “the duty of every mediator to advise
clients to obtain independent legal advice.”” Since the roles of lawyer and
mediator are strictly demarcated in Canada, the professional acts either as
lawyer or as mediator.6′ Unlike the contracted responsibility model, Moore’s
procedural model contemplates the presence of lawyers in mediation ses-
sions. He believes that mediators should encourage parties to consult their
lawyers before, during and after negotiations. This contemplation is, how-
ever, accompanied by the fear that since “[1]awyers are generally trained to
develop a case for a particular solution or position [, they] may couch set-
8 lbid. at 182-83.
‘ That is, to the area created in the modem state by what Kathryn O’Donovan refers to as law’s
“deliberate absence” (K. O’Donovan, Sexual Divisions in Law (London: Weidenfeld and Nicol-
son, 1984) at 201).
Landau, Bartoletti & Mesbur, supra note 15 at 148.
6, Ibid. at 149-50. This is so, even when the professional acting as mediator is a qualified law-
yer.
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tlement options in terms of right and wrong solutions.”62 In other words,
lawyers may challenge the very basis of mediation. Moore does not suggest
how his fear affects lawyer participation in mediation.
Several critics of family mediation practices have drawn attention to
problems arising from an appeal to and reliance upon independent legal ad-
vice. Premised on a superliberal understanding of equality in family law,63
independent legal advice “will in many cases function to hide inequality”
and as a consequence make exposure of inequalities in the family and me-
diation process more difficult:
[1]ndependent legal advice assumes a level of equality between the parties
that makes the information and the advice meaningful in terms of the
wife’s ability to act on them. Informing a person of the legal and economic
consequences of a document and giving her or him advice on whether the
document adequately protects her or his rights and interests is pretty much
an empty exercise if the person has substantially less bargaining power
than the person with whom she or he is trying to reach an agreement. Inde-
pendent legal advice provides protection in direct disproportion to the need
for protection.
In TFM, only the lawyer who is “tremendously helpful to mediators …
as a member of the mediation team” is welcomed;
the lawyer who hinders
the mediation process is effectively excluded. Lawyers are said to compli-
cate the process in three ways. They may be “induced” into the family sys-
tem as caring friends or father figures; they may perceive that the mediator
is taking control of their clients; or they may perceive mediation as
”undermining ‘their’ clients’ rights and perhaps significantly reducing what
they might otherwise have gotten through the courts.” ‘ Irving and Benjamin
state that in the first two instances –
in situations of induction or misper-
ception –
lawyers will withdraw from TFM when they understand, respec-
tively, that their induction hinders the process or that their role is simply
complementary to that of the mediator. In the third instance, when lawyers
62 The Mediation Process, supra note 13 at 108.
3 That is, an understanding of equality which denies feminist arguments any significant author-
ity (see discussion, supra note 27) and which is the subject of M. Fineman’s family law critique,
The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (Chicago: University of
Chicago Press, 1991).
‘ Majury, supra note 2 at 148.
6 Family Mediation, supra note 12 at 181-82.
6 Ibid.
1995)
R. PHEGAN – FAMILY MEDIATION
behave as possessive individualists, they must be confronted with the danger
to client self-determination caused by their efforts to undermine the media-
tion process; they must be told to keep out.
Irving and Benjamin’s position with respect to lawyers is predictable
given that they reject the adversarial system as a means of resolving family
conflict, and consequently enclose family conflict within the space of me-
diation. Chief among their many criticisms of legal action is the court’s
unwillingness and inability to address key emotional issues. 68 Irving and
Benjamin consider emotionally charged family problems to be ill-suited to
the search for facts being
the court’s rational, analytical process,
“complicated by adversarial procedures and rituals which powerfully shape
the way … events are portrayed.” 69 They note that pressure tactics, manipu-
lation, concealment or distortion of facts, and competitive strategies are also
encouraged in the adversarial system.70 “[C]onflict over money, property and
child custody all become symbolic defenses against pain while the underly-
ing emotional issues remain unresolved.” 7 In the authors’ opinion, legal ac-
tion might be useful only when no other method has proven effective. 2
the very characteristics the authors criticize in law –
Irving and Benjamin’s discussion of Maria’s parents, however, provides
a telling example of how ritual and other manipulative forms of mediation
–
pervade TFM
practice. Irving and Benjamin seem incapable, like Landau, Bartoletti and
Mesbur and Moore who ritualistically present mediation-as-consensus as the
alternative to law-as-competition 3 of differentiating between just and unjust
67 Irving & Benjamin fail to consider whether lawyers may be acting in clients’ rather than their
own interests, a fact Martha Bailey notes in her review of the authors (M. Bailey, Book Review of
Family Mediation: Theoy & Practice of Diipute Resolution by H. Irving & M. Benjamin (1989)
3 C.J.W.L. 303 at 311). Lawyers’ interests and what is achieved through the courts may have
nothing whatsoever to do with possessive individualism.
6″Family Mediation, supra note 12 at 40.
69Ibid. at 38-39.
70 Ibid. at 39.
7 1 Ibid. at 40 [references omitted].
7 Ibid. Some “balanced” mediators are not as forthright as are Irving & Benjamin in expressing
the similar assumptions on which their practices are based. Landau, Bartoletti & Mesbur, supra
note 15 at 22, assert that a growing set of opinions and body of evidence, supported by legisla-
tion, point away from litigation for resolving family disputes, except as a last resort.
7’3 Balanced mediators tend to present their practices and the adversarial system as complemen-
tary. Whether complementary or oppositional, however, mediation is an alternative procedure to
representational negotiation by lawyers and to judicial determination. What gets lost in these
complementary/altemative/oppositional stances is the fact that lawyers and judges are those who
come to be regarded as the complements or alternatives to mediators. This is made clear in the
Advisory Committee Report, supra note 3 at 87, which, in discussing mechanisms for sorting out
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competitive practices, and between good and bad reasons for competition.
As the suggested alternatives to law demonstrate, they do not deal with dis-
sent any more rationally than does law. Dichotomizing assent and dissent,
they simply seek to exclude the latter.
Controlling mediators use their power to assert a prerogative to decide
whether mediation or litigation is to be preferred. 74 By producing decisions
about family organization as a choice between consensus and competition,
and by producing consensus as the telos of the family system, mediation be-
comes the rational choice. This self-serving rationality ignores feminist cri-
tique of family mediation, which places great importance on the adversarial
system as presently the only means by which formal attention is given to
gender, race, class and other discriminatory bases which determine the fam-
ily.
The adversarial system does not, of course, give adequate attention to
those bases. Equality rights constitutionally entrenched in the Canadian
Charter of Rights and Freedoms,75 although intended to remedy, if not
eliminate, the effects of systemic inequality, are interpreted by the judiciary
to construct “yet another version of the ideology of equality.’76 However,
mediators who dismiss feminist critique on the basis that it completely sup-
ports the flawed adversarial system miss the point of much of that critique. 7
unsuitable mediation clients, points to “the need for alternative conflict resolution intervention
(e.g. litigation, arbitration).”
74 Girdner, supra note 8 at 146, identifies this method of control.
7′ Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11.
76 K.A. Lahey, “Feminist Theories of (In)Equality” in S. Martin & K. Mahoney, eds., Equality
and Judicial Neutrality (Toronto: Carswell, 1987) 71 at 82. See also J. Fudge, “The Public/Private
Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Femi-
nist Struggles” (1987) 25 Osgoode Hall L.J. 485. There are, of course, area- and case-specific ex-
ceptions which demonstrate a commitment by some judges to redressing at least some injustices
resulting from systemic discriminatory practices. Literature evaluating the contributions of Ma-
dame Justice Bertha Wilson, written both before and after her retirement from the Supreme Court
of Canada, is illustrative. See e.g. S.M. Noonan, “What the Court Giveth: Abortion and Bill C-
43” (1991) 16 Queen’s L. J. 321; M.J. Mossman, “The ‘Family’ in the Work of Madame Justice
Wilson” (1992) 15 Dalhousie L. 115.
” Lenard Marlow and S. Richard Sauber, for example, devote much of their text to pointing out
the inconsistencies, false consciousness, and general wrongheadedness of (especially feminist)
critics of mediation. They advance the thesis that divorce problems should be viewed by the me-
diator from the standpoint and within the value system of a mental health professional, and
somewhat naively demonstrate a sense of dismay that anyone could regard family issues as in
any sense political. They even intimate that mediators who attempt to respond positively to chal-
lenges with respect to legal rights renege on their professional and ethical responsibility (L. Mar-
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Feminist critique of mediation in support of the adversarial system is selec-
tive of what is considered favourable in that system. We wish to expand, by
whatever means are available, public spaces within which to challenge the
liberal state’s operation of a public/private boundary. Owing to the bound-
ary’s operation in support of mediation, vital family/workplace issues of
justice are depoliticized and reprivatized. 78 Those who suffer most as a con-
sequence of privatization are also those most efficiently and effectively si-
lenced by privatization.
D. Conclusion
To exclude lawyers in particular, but also others who may not conceal
their inclination to favour a culturally disadvantaged client (for example,
therapists and extra-family), is to exclude any challenge to the notion that
family and consensus are more important than the individual and dissent. By
ignoring the oppressive supra-systemic effects on family interaction, media-
tion adopts a tactic which disempowers families and individual members,
yet serves a self-legitimating function. It is the mediators’ power which this
tactic protects; power to master the family system and “to derive the maxi-
mum advantages” 79 from the family mediation system by neutralizing chal-
lenges which other actors may raise.
The problem is recognized and formulated in sociological analyses of
systems theory as the “dissociation of problem-producing and problem-
processing arenas.”‘ A first principle of mediation, if autonomy and re-
sponsibility are to be used meaningfully in relation thereto, must be to ref-
use this process of dissociation in the face of challenge and complexity, to
low & S.R. Sauber, The Handbook of Divorce Mediation (New York: Plenum, 1990) at 104-19,
154).
On the home as a crucial site for learning (in)justice, Susan Moller Okin has this to say:
Unless the households in which children are first nurtured, and see their first ex-
amples of human interaction, are based on equality and reciprocity rather than on
dependence and domination –
how can
whatever love they receive from their parents make up for the injustice they see be-
fore them in the relationship between these same parents? … [U]nless the house-
hold is connected by a continuum of just associations to the larger communities …
how will they grow up with the capacity for enlarged sympathies such as are
clearly required for the practice of justice? (S.M. Okin, Justice, Gender, and the
Family (New York: Basic Books, 1989) at 99-100).
and the latter is too often the case –
Discipline and Punish, supra note 6 at 142.
H. Willke, “Three Types of Legal Structure: The Conditional, the Purposive and the Rela-
tional Program” in G. Teubner, ed., Dilemmas of Law in the Welfare State (New York: Walter de
Gruyter, 1986) 280 at 289.
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refuse to insist on cooption or exclusion.
II. Partitioning Parents and Children
Disciplinary space tends to be divided into as many sections as there are
bodies or elements to be distributed.
Foucault”
The principle of ‘enclosure’ is not constant, as argued in the previous
section: selective inclusion and exclusion of relatives, therapy, and law con-
tribute to the functioning of family mediation. Nor is enclosure a necessary
or sufficient condition for organizing disciplinary space. Mediation, in the-
ory and practice, also spaces subjects by means of intra-systemic bounda-
ries. Like the boundary separating nuclear from other kinds of family, the
boundary separating parents and children is valued for its susceptibility to
manipulation or, in current systems speak, its flexibility.
This section examines how each of the TFM, procedural and contracted
responsibility models theorizes relationships between separating parents and
their children, and operates the spaces between them in practice.
A. Children’s Theoretical Importance
1.
Quantitative over Qualitative Parenting
A hierarchy of power is not a popular notion in family systems theory.
According to that theory, a hierarchy of power, as commonly understood, is
a linear metaphor derived from individualism and is inconsistent with the
reciprocal nature of interaction between parents and children. Attached to
the notion of parental power is the implication that parents have power over
children while children have no such reciprocal capacity. Instead, family
systems theory maintains that the parental or executive sub-system should
be understood as influencing the child or sibling sub-system.”
In their family systems approach, Irving and Benjamin maintain that
TFM is based on a special concern for children’s interests. They state that
children’s interests are often correctly viewed as paramount by family me-
diators, and that the mediator’s job is to advocate for the larger family sys-
Discipline and Punish, supra note 6 at 143.
= Ibid.
Benjamin, supra note 25 at 45.
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tem “and especially for the children.”
The manner in which the TFM practitioner discovers children’s interests
is problematic, to say the least. The bulk of Irving and Benjamin’s book in-
dicates that children, as speaking and acting subjects or as subjects-in-
becoming, are hardly considered. Children are used, rather, to endorse both
the principle of formal equality between mothers and fathers, and the medi-
ated shared-parenting procedure for realizing that principle. The omission of
children from the TFM theory of functional and dysfunctional family inter-
action indicates that Irving and Benjamin have little regard for children as
subjects. As a result, TFM theory is concerned almost exclusively with pat-
terns of inter-parent behaviour. The authors only discuss the relationship
between children and separating parents long after a full explanation of the
central tenets of TFM theory and practice.
When children are eventually discussed, it is clear that their interests are
to be understood on the basis of the Toronto Shared Parenting Project,” and
of other selected studies. Data from the Project shows shared parenting in a
favourable light. Since Irving and Benjamin state that the vast majority of
the “shared parents” chosen for the project were characterized “by mutuality
before and after their divorce,” 6 favourable results are hardly surprising. Of
concern, however, is the authors’ attempt to base their arguments on those
results. From the favourable findings regarding shared parenting in the con-
text of pre- and post-divorce mutuality, Irving and Benjamin proceed to ar-
gue for a legal presumption of shared parenting without reference to pre-
divorce mutuality: “[S]hared parenting promotes joint co-parental involve-
ment and decision-making as well as fiscal responsibility.” As their argu-
ment progresses, the element of post-divorce mutuality is also discarded and
whether child custody may become a matter of contention between sharing
parents is apparently irrelevant: “[There is still a greater degree of parent-
child contact within a shared parenting, as opposed to sole custody arrange-
Family Mediation, supra note 12 at 54. The Divorce Act, 1985, S.C. 1986, c. 4, s. 16(8)
states:
In making an order under this section, the court shall take into considera-
tion only the best interests of the child of the marriage as determined by
reference to the condition, means, needs and other circumstances of the
child.
Funded by the Social Sciences and Humanities Research Council, Ottawa. The Project was
initiated by Irving & Benjamin in 1981 and conducted over four years (Family Mediation, ibid. at
193-94). It is cited by many as evidence of the virtues of joint custody. For a critical analysis of its
findings, see Bailey, supra note 2 at 81-83.
“Family Mediation, ibid. at 194-95.
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ment.” 7
The authors also draw on Joan Kelly’s work88 to support their statement
that “a statutory presumption of shared parenting should include giving
judges the authority to order it even when the parents disagree.”8 9 They fail
to draw attention to the ambiguous conclusions of Wallerstein and Kelly’s
major study of post-divorce custody relationships.” Wallerstein and Kelly
state that joint legal custody “may” provide the legal structure of choice for
those parents “able” to reach an agreement and “willing” to give children’s
needs priority or significance in decision-making. 9′
Wallerstein and Kelly also note that many non-custodial parents with-
draw from their children “in grief and frustration”92 as a consequence of
their lack of legal rights to share in major decisions concerning their chil-
dren’s lives. This withdrawal is seen as only partially supporting the greater
choices afforded by joint legal custody.93 Irving and Benjamin do not criti-
cally analyze the kind of relationship parents have with their children –
whether care, companionship or power over them is of primary importance
– when major decision-making withdrawal becomes the reason for parent
withdrawal.94 Nor do they explore the way child experts promote abstract
“Ibid. at 204.
“J.B. Kelly, “Further Observations on Joint Custody” (1983) 16 U.C. Davis L. Rev. 762.
Family Mediation, supra note 12 at 205.
90 J.S. Wallerstein & J.B. Kelly, Surviving the Breakup: How Children and Parents Cope with
Divorce (New York: Basic Books, 1980).
91 Ibid. at 310.
921Ibid.
3Ibid.
9′ See E. Kruk, “Psychological and Structural Factors Contributing to the Disengagement of
Noncustodial Fathers After Divorce” (1990) 30 Fain. and Conciliation Courts Rev. 81. Kruk en-
dorses mediation and related counselling services as an effective alternative for the majority of
divorcing families, to adversarial means of resolving custody/access disputes. In arriving at this
position, he relies on reports from a study in which he compared “contact” and “disengaged”
post-divorce fathers. The studies indicated that fathers with the highest levels of involvement
with, attachment to, and influence on their clildren during the marriage became disengaged, in
90% of cases, as a result of obstruction by ex-wives. These fathers felt that the antagonistic nature
of the post-divorce relationship between spouses had been aggravated by the adversarial ap-
proach of the legal system. Conversely, fathers who had been at the periphery of their children’s
lives during marriage remained in contact after divorce. These fathers stressed the importance of
the support and encouragement of their ex-wives, and were more likely to report lawyer behav-
iour as helpful, as both helpful and hindering, or as having no effect on their relationships with
their children.
Kruk links these results with the “homogeneous” approach to custody taken by the adversar-
ial system (custody for caring mothers; access for financially supportive fathers). In doing so, he
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and universal sympathy for the grief and frustration of fathers, and how this
can rebound on mothers. Susan Boyd’s analysis95 of Tyndale v. Tyndale96 is
illustrative. In that case, a mother lost custody to the father on the basis that
he could lose interest in the children were she to be granted custody. The
father “only really became a father to the boys after the separation;” but the
mother is considered “sufficiently strong in her own right to handle the
situation even though she does not have custody of the children and will
continue to be a mother to the children.” 97
Wallerstein and Kelly further state that in viewing joint legal custody as
reasonable, they differentiate between joint legal custody and joint physical
custody. They renounce evenly divided child sharing in favour of unequal
physical custody. However, they do not adequately probe the problems of
of joint decision-making power over major aspects of
joint legal custody –
children’s lives – where physical sharing is unequal. They ultimately con-
clude with the observation that, due to the centrality of both parents to the
psychological health of children, “where possible divorcing parents should
be encouraged and helped to shape post-divorce arrangements which permit
and foster continuity in the children’s relations with both parents.”” Atten-
tion has been drawn to the distinction between continuity of contact with
both parents and the amount of time spent between them in their children’s
adjustment to divorce. 99 Critics have also noted the absence of conclusive
evidence in more recent research that children’s adjustment is linked with
the type of custody arrangement.”
fails to explore the implications of his reliance on reports of fathers only. His argument suggests a
one-dimensional acceptance of the idea that women and lawyers are overpowering when fathers
want to continue being involved with their children, and are cooperative so long as fathers remain
on the periphery. Kruk does not consider that a desire for controlling power may be a possible
basis for the deprivation experienced by disengaged fathers. Neither does he value narration by
wives (or children) of their experiences with respect to contact and disengaged fathers.
” S.S. Boyd, “From Gender Specificity to Gender Neutrality? Ideologies in Canadian Child
Custody Law” in C. Smart & S. Sevenhuijsen, eds., Child Custody and the Politics of Gender
(London: Routledge and Kegan Paul, 1989) 126 at 144.
96 (1985) 48 R.EL. (2d) 426 (Sask. Q.B.) [hereinafter Tyndale].
97 Boyd, supra note 95 at 144, quoting Tyndale, ibid. at 428-29.
9 Wallerstein & Kelly, supra note 90 at 310-11.
99 See e.g. C.S. Bmch, “And How Are The Children? The Effects of Ideology and Mediation on
Child Custody Law and Chidren’s Well-Being in the United States” (1988) 2 Int’l J. L. & Fam.
106 at 109.
‘9 See Bailey, supra note 2 at 84, referring to research conducted by the Center for the Family
in Transition, and to its paper by J.R. Johnston et al., “Ongoing Post-divorce Conflict in Families
Contesting Custody: Does [sic] Joint Custody and Frequent Access Help?” (Paper presented to
the Annual Meeting of the American Orthopsychiatric Association, 30 March 1988)
[unpublished]. In their analysis of the misuse of social science data in the custody debate, Martha
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As we have seen, Irving and Benjamin promote shared parenting. In
doing so they emphasize quantity over quality. Further, in apportioning chil-
dren between their parents, they focus on post-divorce child care in a way
which disconnects it from pre-divorce child care. This process fails to con-
sider why a fathers’ rights movement against employers who do not provide
workers (men as well as women) enough time and flexibility for child care,
does not seem to enjoy as high a profile as a fathers’ rights movement which
complicates many women’s child care responsibilities.”‘
Family systems theory represents intra-systemic boundaries as complex
and fluid.’0 2 In isolation from other aspects of systems theory, this represen-
tation should provide a framework for allowing children’s interests to be ap-
propriately dealt with on a case by case basis. The TFM retainer contract
also has that potential in so far as it does not make shared parenting an
agreed goal of mediation.’0 3 However, it may be inferred from Irving and
Benjamin’s case reports that it is fathers’ interests which are served by sys-
tems complexity and fluidity, that if a father enters mediation demanding a
share of child custody, he will get it; if he enteres mediation demanding only
access, again he will be accomodated. ‘””
Fineman and Anne Opie stress the tendency of those arguing for joint custody to make generali-
zations which ignore the import of, and essential information contained in, qualifications noted in
studies such as that of Wallerstein & Kelly (M. Fineman & A. Opie, “The Uses of Social Science
Data in Legal Policymaking: Custody Determinations at Divorce” (1987) Wisconsin L. Rev.
107).
‘0’ In the Smith case, the mediator extracts from Maria Smith an undertaking to help the hus-
band from whom she is separating acquire the necessary fathering skills (Family Mediation, sit-
pra note 12 at 113-29). In a case study undertaken by
ina Grillo, “The Mediation Alternative:
Process Dangers for Women” (1991) 100 Yale L.J. 1545 at 1563, a mother has to cope with the
effects of the care given to her child, Kenny, during a period with his father. Instead of being un-
der his stepmother’s care as his father had promised, Kenny has been in unlicensed daycare
where corporal punisment is regularly used by the teacher. Kenny had not previously been sub-
jected to corporal punishment, to which his mother is vehemently opposed. He becomes violent
and aggressive with other children for the first time in his life. In response to raising the issue in a
request for sole custody, Kenny’s mother is told by the mediator that the whole incident is past
history and she must now recognise that the parent who has the child is responsible for choosing
daycare. She must learn to give up control.
‘OBenjamin, supra note 25 at 49.
,03 Family Mediation, supra note 12 at 266-70.
‘0 In the Smith case, ibid. at 113-29, the only “full-length case study” reported by Irving &
Benjamin, both Maria and John Smith want custody of their daughters. A shared-parenting ar-
rangement is eventually produced which gives more of the children’s time to John than to Maria,
despite his long-distance truckdriving job and the fact that his own parents, unlike those of Maria,
are dead. In the Faulkner case vignette, the most detailed of three TFM “case vignettes”, and the
only one in which custody is in dispute at the outset of mediation, Mr. Faulkner wants access. He
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2.
Fault as Infantasy
The presentation of children’s best interests is also problematic in Lan-
dau, Bartoletti and Mesbur’s contracted responsibility model. Clause 3 of
the retainer contract states:
3. It is agreed that the best interests of the child[ren] will be the primary
consideration for:
resolving the issues of custody and access,
and
developing a shared parenting plan.”O
The wording of this clause makes shared parenting part of the process of re-
solving the twin legal issues of custody and access. Children’s best interests
are, in fact, the “primary consideration” only within the shared-parenting
resolution. What justification is offered by the authors for giving priority to
shared parenting?
Drawing on mental health research, particularly that of Wallerstein and
Kelly,’O6 Landau, Bartoletti and Mesbur cite the common reactions of chil-
dren to separation in general, and the different stages of development at
which specific reactions occur. They appear to find in Wallerstein and
Kelly’s work three general problem areas with respect to children’s needs:
an inability to accept separation; fear in younger children that they are re-
sponsible for the marriage breakdown, and anxiety in older children about
their own future relationships; their witnessing of or other involvement in
parents’ destructive behaviour.’0 7 Following Wallerstein’s
independent
work, ‘0 Landau, Bartoletti and Mesbur itemize the tasks children must
therefore learn to perform in order to deal with these problems. They must
demands an access arrangement irrespective of his daughters’ skating lessons and practice, an ac-
tivity which has meant the involvement of his wife, and which has purportedly made Mr. Faulk-
ner “who holds a managerial position” feel completely shut out of the family. As part of the ac-
cess arrangement reached, Mr Faulkner will not prevent his daughters from “minimal necessary
skating practice” when they are with him for extended periods of time (ibid. at 188).
‘0’ Landau, Bartoletti & Mesbur, supra note 15 at 213. The open mediation contract states in
paragraph 2, ibid. at 216, that “the Mediator will perform a complete evaluation in order to arrive
at recommendations for a parenting plan that will be in the best interests of the child.”
“o6 Supra note 90.
” Landau, Bartoletti & Mesbur, supra note 15 at 66-68.
… J.S. Wallerstein, “Children of Divorce: The Psychological Tasks of the Child” (1983) 53 Am.
J. of Orthopsychiatry 230.
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acknowledge the reality of the marital rupture, resolve the loss of an intact
family unit and accept the permanence of the divorce; resolve anger and
self-blame, and achieve a realistic hope regarding their capacity for inter-
personal relationships; disengage from parental contact and distress, and re-
sume their customary pursuits.’09 Parents, for their part, should pool their ef-
forts to help their children: they “need to learn to focus on the needs of the
children, rather than on the fault of the other spouse.””0 The authors fail to
question the intent, meaning and consequences of the simplistic dichotomies
they use to conceptualize custody issues. Instead, they stress the importance
of focusing the parties “on realistic, objective criteria, rather than [on] each
party’s position, which may be based on emotional factors, such as a desire
for revenge for a matrimonial fault.””‘
Surely the three general problem areas emphasized by Landau, Bartoletti
and Mesbur indicate a need for children to understand why their parents
have separated, where fault does and does not lie on an individual and sys-
temic level, and the differences between constructive and destructive re-
sponses. How can children ever hope to understand separation and form
lasting relationships when they are insulated from confronting such issues?
Mental health and behavioural science principles as applied to mediation,
make child division the focus of separation, equate constructive expression
of conflict with consensus, and replace understanding with denial.
3.
Adulteration as Maximization
Moore does not theorize children’s interests. His discussion of mediator
approaches to custody appears to assume that it is not necessary to articulate
children’s interests independently of a belief that parents generally know
what is best for their children. That belief distinguishes a process-oriented
mediator from a substance-oriented one, or, in other words, the mediator as
orchestrator from the mediator as deal-maker. Deal-makers believe they
should intervene to influence the substantive outcome of parent negotiations
if children’s interests are violated or ignored. In this way, deal-makers advo-
cate the unrepresented interests of children. Orchestrators, by contrast, be-
lieve parents have no need for expert guidance; they need only procedural
assistance to solve the problem at hand. Moore professes a strong leaning
’09 Landau, Bartoletti & Mesbur, supra note 15 at 66-67.
.. Ibid. at 66 [emphasis added].
. Ibid. at 79 [emphasis added]. On the dominant social science meaning of realistic criteria,
see Fineman & Opie, supra note 100.
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towards the process or orchestration end of this continuum” 2
So stated, Moore’s position becomes the classic exposition of so-called
mediator neutrality: coming from nowhere before the process, and going
nowhere after it, mediators simply intervene to ensure that the process func-
tions. Moore does not acknowledge that problem-solving assistance is al-
ways based on a particular view – within the mediation movement, this
implies a specific, political view. This view has serious consequences for
family reconstitution, insofar as parents are co-opted by an appeal to exper-
tise unaccompanied by any acknowledgment of the mediator’s political po-
sition. Consequently, mediator impartiality as between the two clients, when
it exists, is purely coincidental.
Since procedure and substance are inseverable, although distinguishable,
Moore needs a theory of children’s interests. By this, I suggest that he needs
to think out such a theory. Moore’s practices with respect to children, a dis-
cussion of which carries over briefly into the next sub-section, do in fact
work within a theory; however, his theory is essentially flawed because of
its underdevelopment. He needs a theory for the additional reason that his
leaning towards, rather than idealized occupation of, the process pole of his
continuum contemplates a residue of children’s interest for which the media-
tor is responsible.
B. Practising Children’s Best Interests
In Moore’s consensus approach to bargaining, which is lodged in the
ideology of the mediation movement, the aim is generally “to create a solu-
tion that maximizes the satisfaction of all parties’ interests”. Narrowed to
custody, the aim translates into “maximiz[ing] the opportunity for relation-
ship with the child.””‘ 3 Moore’s belief that parents know best their children’s
interests must, of course, be integrated into his maximization aim, along
with the residue of children’s interests inherent in his unidealized approach.
Thus when each parent demands sole legal custody, Moore reframes the
problem as one of “how each parent can maintain an acceptable and nurtur-
ing relationship with the child.”‘ 4 To ensure achievement of the maximiza-
tion goal, the mediator then has each parent list the activities she or he wants
to share with the children. These activities are traded off against those of the
… The Mediation Process, supra note 13 at 40-42.
“‘ Divorce Mediation, supra note 13 at 266.
114 Ibid.
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other parent in such a way as to minimize scheduling conflicts.” 5
Mediator input in Moore’s procedural model steers parents towards a
shared-parenting outcome. It does so without reflection on the questions
whether consensus bargaining and shared parenting procedures are in the
child’s best interests, and whether parents are best informed of the meaning
and consequences of the procedure.
Informing parents of the implications of choosing mediation is particu-
larly pertinent to the contracted responsibility approach. This is because the
mediator presumes to know better than the clients what is in the best inter-
ests of the children, while at the same time off-loading responsibility for
custody decisions onto those clients. Landau, Bartoletti and Mesbur’s
strained articulation of how a mediator may manoeuvre parents from cus-
tody and access disputes to shared parenting agreements illustrates the
problem of integrating parent responsibility into a presumption that the me-
diator knows best. For example,
the mediator might determine whether the parents agree that the best inter-
ests of the children ought to be the primary criteria for evaluating a solu-
tion, as opposed to whether one parent wins or loses. The mediator could
spend some time with the parents identifying what is meant by “best inter-
ests of the children”. For example, the parties might agree that: … Children
should spend considerable time with both parents, in keeping with the
children’s needs, stage of development and wishes and with the ability and
willingness of the parents to spend time with the children.” 6
It appears that the mediator’s decision could result from conduct which the
adversarial system disallows: asking leading questions.” 7
Since Landau, Bartoletti and Mesbur’s retainer contract gives the media-
.5 Ibid. See also The Mediation Process, supra note 13 at 176. Trade-off of multiple variables is
a central aspect of the labour model of family mediation relied upon by Moore. See J.M. Haynes,
Divorce Mediation: A Practical Guide for Therapists and Counselors (New York: Springer,
1981) at 74-76.
116 Landau, Bartoletti & Mesbur, supra note 15 at 78.
“‘ Irving & Benjamin, both with social science backgrounds, take a one-dimensional, opposi-
tional stance against rules of evidence/procedure (Family Mediation, supra note 12 at 38-40, 43).
Landau, Bartoletti & Mesbur, two of whom are lawyers, appear satisfied to ignore this aspect of
law and the absence of such protections in mediation, without any kind of argument for doing so
and instead rely on the ethics of mediation associations.
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tor the right to include children at any time in the mediation process, the
problem of manipulative suggestion may be compounded. The authors stress
the correct procedure for conducting meetings with children in the presence
of their parents, and in fact state that the mediator should make it clear “that
the parents will be making the decision for the children, that is, that neither
the children nor the mediator will be making the decision, but that it is im-
portant for the parents to have input from the children in arriving at a deci-
sion.”8
Since the mediator aims to manoeuvre parents into agreeing with her or
him that shared parenting coincides with the children’s best interests, the
desirability of shared parenting will not only be the presumption according
to which parental decision-making takes place, but it will also become the
presumption according to which children’s input is interpreted by their par-
ents. The ensuing vulnerability of children in the face of adult interpretation
is demonstrated in the TFM practices discussed below.
Returning to Irving and Benjamin’s Toronto Project, the enormity of
their leap in logic from pre- and post-divorce mutuality to a legal presump-
tion of shared parenting is hardly diminished by the fact that all data con-
cerning the children in their Project is based only on parents’ perceptions.
The authors acknowledge this fact, adding that the data “thus may not coin-
cide with the children’s actual experience.”‘ 19
and echoing TFM practice with respect to external influence –
Consistent with this disregard of children as speaking and acting sub-
jects –
is
an invitation to children to participate in mediation sessions only where their
physical presence is essential as “a last ditch effort to get around an im-
passe.”” Children are otherwise only present on a purely symbolic level.’2’
This means that even in their absence, they can still exert an important in-
fluence in therapy:
“‘ Landau, Bartoletti & Mesbur, supra note 15 at 58.
119 The authors say that some children’s results were omitted from the sample of 395 respon-
dents because of limited resources (Family Mediation, supra note 12 at 195).
20 Ibid. at 180.
121 Irving & Benjamin’s use of the notion of children’s symbolic presence in mediation draws on
the Palo Alto Mental Research Institute’s family therapy methods, which tend to restrict physical
presence to one or few members of the family system, and on the notion of ‘family ghosts’ or de-
ceased family members who continue to influence the family’s value system (ibid. at 179).
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[We call the children into our mediation sessions by spending a good deal
of time talking about them. How old are they? what do they look like? how
do they behave? how does each parent interact with them? have they any
funny quirks? special strengths? do they have pictures of them? what do
the parents want for their future? –
these are all questions we might ask
that have the effect of symbolically recreating the children in mediation.
They are there just as palpably as if they were present in the flesh.”
Even when children are physically present, the techniques used to dis-
cover their wants, combined with mediator interpretation of their responses,
appear too infused with shared-parenting metatheory to allow for an accu-
rate assessment of how the children themselves think and feel. The Smith
case study is again illustrative. Maria and John’s ten- and six-year-old
daughters are interviewed in the presence of both parents as well as grand-
parents. The reader is not told what exactly is asked of the girls, nor how
they reply. The reader knows only that “both express the wish to spend time
with their dad.”” Through the control of the mediator, time with their father
becomes every weekend (beginning at five p.m. Friday and ending at seven
p.m. Sunday), as well as one afternoon and night weekly, and half of the
school holidays. This is decided despite the facts that the father is a long-
distance truck driver, and that the maternal grandparents are the only grand-
parents still alive. 24 Since inclusion of children in the process appears to be
only a manipulation of them, the presupposition that professional mediation
is necessarily, or even often, the more just of the available procedures for
dealing with custody disputes must be questioned.
C. Conclusion
The best interests standard plays a more or less prominent role in each
approach to mediation, but what does it mean? Its indeterminacy becomes
obvious when the boundary partitioning parents and children is examined.
Consensus bargaining, contracted responsibility and TFM boundaries all
shift as the proponents of each model try to overcome the inevitable inco-
herence of practices purporting to be objective and neutral. But while me-
diation’s disciplinary space “permit[s] circulation”, it also “provide[s] fixed
positions”.’2′ Whether children’s interests dominate or are subjected to those
1
2 Ibid.
‘” Ibid. at 125.
124 Compare (and contrast) the Faulkner case vignette in which mediator interpretation of the
children’s comments (“They didn’t really want to stop skating, but neither did they want to have
to choose between their parents”) is translated into mother custody and father access, which was
what Mr. Faulkner had wanted from the outset (ibid. at 188).
‘2 Discipline and Punish, supra note 6 at 148.
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of a particular parent, they are consistently integrated into the interests of
mediation, which usually correspond to the interests of shared parenting.
Beneath the banner of children’s best interests, mediation reduces the com-
plexities of accounting to and for children by rationalizing interaction with
them.
1I. Circulating Parental Partners
In discipline, the elements are interchangeable, since each is defined by the
place it occupies in a series, and by the gap that separates it from the others
… Discipline is an art of rank, a technique for the transformation of ar-
rangements. It individualizes bodies by a location that does not give them a
fixed position, but distributes them and circulates them in a network of re-
lations.
Foucault 6
Systems theory effects a shift from the traditional individualist percep-
tion of entities to one which stresses relationships between entities or indi-
viduals.’ 27 The previous two sections have shown that the shift is largely fic-
tional with respect to the entity of the nuclear family and to its parent/child
sub-systems. This is because individual autonomy is also largely fictional.
Liberalism is selective as to who has autonomy, and those selected in any
particular situation are generally those from whom the selectors stand to
benefit most. Dominant family mediation practices, informed by systems
theory, favour the nuclear family unit or entity over other kinds of family
and favour mediation over any other means of dispute resolution.
Within the parent sub-system, known as “the marital dyad”, 28 family
mediation favours the husband over the wife. It does so by again emphasiz-
ing the relationship or space between the spouses. This emphasis is partly a
consequence of tactics already discussed (i.e. of giving primacy to the me-
diated nuclear family and to parents which prevents an individual spouse
being viewed as distinct and as the centre of many different relationships).
The emphasis is partly more direct. In this section, I first show how a shift
in the concept of causality in systems theory directly focuses attention on
that space. An understanding of causality as circular underpins the practices
of each model and displaces the idea of linear causality. Viewing causality
as circular reduces individual spouses to an interactional space that is gen-
“6 Ibid. at 145-46.
Benjamin, supra note 25 at 39.
‘ Ibid. at 48.
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der-neutral.
Secondly, I demonstrate how all three models treat asymmetry in a
marital relationship as complementarity, whether or not asymmetry is willed
by the subordinated spouse. Viewing asymmetry merely as complementarity
leads to viewing conflict merely as dysfunction. When understood benignly
as dysfunction, conflict may simply be “resolved” under the guidance, or,
more accurately, through the tactics, 29 of the family expert.
A. Surface or Two-Dimensional Causation
Systems theory, as Benjamin explains it, only applies the traditional
cause-and-effect perception of the world to mechanical systems; an applica-
tion of that perception to living systems such as the family is therefore con-
sidered inappropriate.’ The traditional perception is conceptualized in lin-
ear terms, whereby outcomes can be predicted on the basis of knowledge of
the quantified characteristics of relevant entities. This perception is thus re-
jected by systems theory in the context of human systems because it does
not account for those entities’ relational nature. Nor does it account for the
fact that “any causal connection between past and present states of the sys-
tem diminish [sic] to the vanishing point” as relevant events and processes
accumulate over time.’ Consequently, causality has come to be viewed as
circular in nature. In this light, causality purportedly reflects what systems
theorists understand as the necessary discontinuity and irreversibility of
change within complex systems. Circular causality or recursivity “involves
simultaneous, mutual causal processes whose locus is in the ‘space’ between
interacting system members rather than within them, either in their past or
the present.”’32
The coordination of parts and processes is a central tenet of systems
analysis. Thus, mediators apply mechanical, biological, and social concepts
‘9 I understand “tactics” as a mode of action whereby the value of reflective knowledge, such
as may be implied by the notion of guidance, is subordinated to that of technical skill. The effect
in mediation is simultaneous enhancement of mediator control and concealment of this fact.
‘” Benjamin, supra note 25 at 40.
131 Ibid.
32 Ibid. at 41. The systems conceptualization of causality has developed through several stages
of dominant scientific understandings of human development. From the seventeenth century to
the latter half of this century, those stages have elaborated a mechanical model of man, an organic
model of man, a process model of social interaction, and, drawing on “pure” and social sciences,
a systems model of interaction at all levels of organization. A number of principles and processes
are unified in what is now known as General Systems Theory (GST) (ibid. at 37).
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to the interaction of separating spouses. In doing so, they bind the family
with the family mediation system in a “psychocyberbioepistomology” of
family dispute resolution. 33
From that epistemology, Irving and Benjamin invoke a melange of
thermodynamics imagery’34 to explain how emotion and reason operate in
the space between spouses. To outline briefly the background of the Smith
case study, as reported by the TFM mediator, Maria’s interaction with her
family intensified when John, with whom she had only had fleeting mo-
ments of closeness, refused to respond to her complaints concerning his ne-
glect and her growing loneliness. Having formed another relationship in
which she saw the potential for the family life she wanted, and having over-
come her mother’s objections to the new relationship, Maria told John of her
intention to separate. Although John had not been close to Maria, he never-
theless felt at home and at ease in her presence. Completely unprepared for
their break-up, he pleaded for a second chance, accused her of selfishness,
and confessed that he was unable to cope alone. He also threatened to harm
her lover and thought aloud of suing for sole custody. In their assessment of
the relationship Irving and Benjamin state:
[1It appeared that the relationship between John and Maria was character-
ized by an approach-avoidance pattern. Close for a time, they would then
separate to the point where one or the other began to feel uncomfortable
when they would come together again. Such oscillation between closeness
and distance had initially been relatively rapid, with short intervals be-
tween one pole or the other. But over time, the rate of oscillation had
slowed, the periods of closeness becoming shorter and shorter and the pe-
riods of distance became longer and longer. Most recently, they had be-
come so long, that one partner, Maria, felt herself forced to try to change
things; when her efforts to bring her husband closer failed, she turned
elsewhere.
… This compound term is used by G. Teubner, “After Legal Instrumentalism? Strategic Models
of Post-Regulatory Law” in G. Teubner, ed., Dilemmas of Law in the Welfare State (New York:
Walter de Gruyter, 1986) 299 at 308. Teubner borrows this term from S. Beer, “Preface to
Autopoiesis” in H. Matuma & E Varela, eds., Autopoietic Systems (Urbana: University of Illinois
Press, 1975).
“4 In accordance with the second principle of thermodynamics, disorder and differences in
“homeostatic” or closed systems are levelled down through a process called entropy. Initial con-
ditions detemine the equilibrium state of such systems. In open systems, by contrast, order and
complexity can be increased by the import of “negative entropy”, the transfer of matter as found,
for example, in the life system process. A time-independent state of “equifinality” may be at-
tained independent of initial conditions, and detennined only by system parameters (L. von Berta-
lanffy, “General Systems Theory –
a Critical Review” in W. Buckley, ed., Modern Systems Re-
search for the Behavioral Scientist (Chicago: Aldine, 1968) 11 at 18). In systems theory, the fam-
ily is regarded as an open system (Minuchin, supra note 31 at 50).
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In this context, the behavior of John and Maria became reasonable.”,
By conceptualizing the spouses’ behaviour as a mechanical oscillation
between closeness and distance or as a positive/negative feedback loop of
approach/avoidance, Irving and Benjamin diminish the distinctive behaviour
of each spouse. 36 In addition, they do not address the distinctive causes of
the behaviour. Causes, behaviour and persons all merge in a single pattern of
interaction to which is applied a single standard of reason. This manoeuvre
is also used in
–
both “balanced” models.
collapsing causality into a single pattern of interaction –
In Christopher Moore’s procedural model, the interactional space of the
spouses’ negotiations mixes exchangeable interests in an ever-expanding
pie. While Moore views the causes of conflict as multiple, diverse and inter-
twined,3 7 he considers the major cause of marital disputes to be conflicts of
interest.’
Substantive benefits, procedural dynamics and psychological
needs, in combination, are the three categories of interest over which such
disputes usually take place. The spouse as negotiator attempts to maximize
the satisfaction of his or her interests and to minimize the negative impacts
of competing interests.’ Teaching parties to negotiate effectively is one of
the mediator’s major tasks. 40
Following Fisher and Ury, Moore delineates two major negotiation pro-
cedures between which parties choose: positional or interest-based bargain-
ing. ‘4
‘ The win/lose mentality of positional bargainers prevents them from
perceiving their interests as interdependent with their spouses’. Positional
‘ Family Mediation, supra note 12 at 114-15.
*’The feedback loop refers to telenomic, or goal-directed, systems. In such systems, output be-
haviour is compared to a goal or value and reintroduced as input. Information about a difference
is then utilized to direct subsequent output behaviour. Negative (or variety) feedback tends to re-
duce deviation from the system’s goal and thus to maintain patterns within specified limits. Posi-
tive (or constancy) feedback tends to increase deviation and to alter the prevailing pattern
(Benjamin, supra note 25 at 49). Whether John and Maria’s interaction is better described as a
negative or a positive feedback loop will depend on the stage at which the description is applied.
In accordance with cybernetics theory, it is more accurately described as positive before Maria
acts to change the situation, and as negative when she acts.
‘ Divorce Mediation, supra note 13 at 252.
138 Ibid. at 264.
’39 Ibid. at 255.
“0 Ibid. at 266.
… R. Fisher & W. Ury, Getting to Yes: Negotiating Agreement Without Giving In, 2d ed. (New
York: Penguin, 1991) at 40.
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bargainers adopt particular settlement options, on the assumption that both
sides will give incrementally until they reach an acceptable settlement range.
This often results in “compromise settlements based on the division of re-
sources or of child custody that are not the best solution for anyone.”‘ 42 The
interest-based bargainer, with a win/win attitude, does not assume that the
resource at issue is necessarily limited. The task of the mediator is to foster
this attitude, by focusing husband and wife on their respective needs, the
interests they hold in common, and on what Moore calls non-competing or
complementary interests which have “trade-off’ potential.’ 43 Moore’s pur-
pose in making compatible or complementary interests explicit is, among
other things, to build “a habit of agreement”.’ The procedural notions of
compatibility and complementarity, and accordingly the kind of agreement
to which the procedural model habituates clients, will be explored in the
next subsection.
Landau, Bartoletti and Mesbur do not develop a theory of causation in
their contracted responsibility model. The model nonetheless circulates cli-
ents in the interactional space created by the expertise of the mediator. The
retainer contract, signed by husband, wife and mediator, carries the header
“Re: (clients’ names)”. Throughout, it refers to clients indiscriminately as
“the parties” or as “the husband and wife.’ ‘ 45 Similarly, the listening and
communication technique promoted by the authors teaches separating
spouses to
[accept] the fact that each person is entitled to his or her own perception of
a situation. That is, rather than putting the mediator in the position of
judging who is right or wrong, who is lying or truthful, both parties need to
accept that they may perceive situations differently and therefore may feel
and act differently.'”
Thus, circular causation underlies the logic of both contractual and behav-
ioural manoeuvres in this model.
“41 Divorce Mediation, supra note 13 at 266.
“3 Ibid. at 267.
The Mediation Process, supra note 13 at 198.
“, Landau, Bartoletti & Mesbur, supra note 15 at 213 (closed mediation contract), 216 (open
mediation contract).
‘”Ibid. at 77. Note how entitlement and need –
representing realms of discourse described by
Foucault as heterogeneous or incompatible, yet capable of operating together to explain the
global functioning of normalization –
are used indiscriminately in this passage (see ‘”Two Lec-
tures”, supra note 19 at 107-108).
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B. Causation in the Service of Domination
Within the conceptual shift from linear to circular causation, Gregory
Bateson of the Palo Alto school identifies two patterns of family interaction
which transcend the clinical/non-clinical distinction. He does so in terms of
the “marital dyad”, while acknowledging that both patterns can operate
among any number of participants. He states that the marriage relationship
is characterized as “symmetrical” insofar as behaviour which both partners
regard as similar is linked in such a way that more of the behaviour in one
stimulates more of the same in the other. The relationship is characterized as
“complementary” if the behaviour of each partner is dissimilar, yet still
linked to reciprocal stimulation.’4 7
Benjamin’s presentation of Bateson and other theorists suggests that it is
difficult to identify the origin or source of reciprocal stimulation. The ques-
tion of whose behaviour first determines the other’s depends simply on
“where one chooses to break the continuity of process. One might just as
well start with variable B as a determinant of subsequent changes in variable
A.”‘ 48 In his discussion, Benjamin also draws attention to family systems
theorists’ recognition that relationships of ‘dominance’ and ‘submissiveness’
exemplify complementarity. Benjamin does not indicate, however, whether
those theorists distinguish between asymmetrical relationships which are
complementary and those which are not. Similarly, Benjamin himself fails
to make
terms
‘dominance’ and ‘submissiveness’ may go so far as to suggest willed support
of a power hierarchy, or at the very least, a passive acceptance thereof. Us-
ing these expressions to generalize about asymmetrical relationships ob-
scures the fact that relationships of domination and subordination may be
entirely unwilled. 49
this essential distinction. Like
‘complementary’,
the
‘4’ G. Bateson, “The Cybernetics of ‘Self’: A Theory of Alcoholism” (1971) 34 Psychiatry 1,
cited in Benjamin, supra note 25 at 44.
’48 Benjamin, ibid. at 41, quoting J.C. Coyne & R.S. Lazarus, “Cognitive Style, Stress Percep-
tion, and Coping” in I.L. Kutash et al., eds., Handbook on Stress and Anxiety (San Francisco:
Jossey-Bass, 1980).
“‘ Drawing on M. Walters, “A Feminist Perspective in Service Delivery Systems” (The Family
Therapy Practice Center, Washington, D.C., 1986) [unpublished], M. Laurie Leitch gives, as an
example, social scientists’ inappropriate use of complementarity to explain family dynamics.
Their characterization of mothers as over-involved in family life and fathers as peripheral thereto
implies that “the mother must change while the father has only to enter –
to save the family from
the excesses of the mother.” The message given to the mother is that less of her is better, a mes-
sage that corresponds to the devaluation of women in spheres outside of the family (M.L. Leitch,
“The Politics of Compromise: A Feminist Perspective on Mediation” in D.T. Saposnek, ed., Ap-
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Symmetry and asymmetry are the preferred terms for distinguishing
power relationships in Christopher Moore’s procedural model. Complemen-
tarity surfaces, however, as the fixed idea around which Moore circulates
asymmetrical power. Even in his presentation of more extreme forms of
asymmetry, he avoids suggesting that in treating the problem, conflict may
be read as something other than a simple impasse in allegedly complemen-
tary relationships. 50 Moore solves the problem of mediating asymmetrical
power, which he considers the norm in many family disputes, by projecting
the interests of each party onto a single plane or into a causal circle of a re-
lationship of exchange. The objective is “to minimize the negative effects of
asymmetrical power relationships on the negotiation process.””
The procedural model sees one kind of asymetrical power conflict as a
perceptual problem. This occurs where “the spouses do not have equal
power, but the weaker party, by bluffing or through a misperception by the
stronger, has made the other believe that they do have a symmetrical rela-
tionship.”” 52 It must be noted, however, that Moore’s discussion of bluff re-
fers only to bluff which is “ill-timed or inappropriate.”’53 To deal with this
type of misrepresentation, the mediator works with the bluffing spouse
simply to minimize the impact and to prevent retaliation.
The procedural model treats the bluffing spouse as gender-neutral, even
though women most often occupy the weaker position with respect to prop-
erty and conjugal violence, and therefore with respect to just settlement of
custody. Given the systemic nature of gender inequality, it might be germane
for Moore to consider why a mother, as distinct from a father, might try to
bluff and why Moore thinks the procedural response should be to retreat to
prevent retaliation.
Other problems of asymmetry arise where the stronger, again gender-
neutral, party pursues a manipulative and competitive path, ultimately
plying Family Therapy Perspectives to Mediation (1986-87) 14/15 Mediation Quarterly 163 at
170-71).
,o Moore says that conflict is a fact of life that results in bargaining impasse. Bargaining im-
passe only becomes dysfunctional in the absence both of participants’ ability to devise efficient
and effective cooperative problem-solving procedures, which depends on their laying aside dis-
trust and animosity, and of availability of solutions which will at least partially satisfy all partici-
pants’ interests (The Mediation Process, supra note 13 at ix). Moore’s procedures for laying aside
distrust and animosity expose the priorities in his efficiency and effectiveness discourse.
“‘ Divorce Mediation, supra note 13 at 269.
52 Ibid.
… Ibid. at 270.
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seeking a win-lose outcome, and similarly where the bases of the parties’
power are very different. The procedural model deals with a competitive,
stronger party by urging both parties to treat the relationship as symmetrical.
The only rationale offered for this tactic –
a variation on the theme of bluff
is that it maximizes benefits and lowers costs. Costs and benefits are to
–
be understood as the mediation movement understands them: greater costs
are associated with hiring an attorney, while greater benefits are associated
with hiring a mediator. Where the bases of parties’ power differ greatly,
Moore suggests the appropriate intervention is to blur or obscure the asym-
metry in order to promote cooperation on the basis of doubt. The tactic is
commonly referred to as “keeping the parties off balance.”‘ 4 Client decep-
tion and self-deception, which promote both cooperation on the basis of
doubt and mediation as a greater benefit than litigation, are thus acceptable
bluffs. Though the procedural model professes mediator neutrality, its ap-
parent comfort with bluffing does not address why, in a neutral process, any
kind of bluff is required.
Finally, in cases “where the discrepancy between the means of influence
is extremely great,”’55 Moore advocates managing the power relationship to
allow for productive exchange. Productive exchange involves, among other
techniques, encouraging the weaker, gender-neutral party to make realistic
concessions. 156 Further, the procedural model understands reality only in
terms of capital, i.e., funds, and consequently, also in terms of the qualified
attorneys and access to case law that funds can buy.5 7 Within that discourse,
“realistic” concessions will most often be those made by women to the real-
ity/objectivity of business and professional men.’58
‘ Ibid.
153 Ibid.
156 Ibid.
Power is defined by Moore, ibid. at 268, in terms of these variables.
,s’This is a fact well understood by Judge Richard Neely who writes in support of the primary
caretaker rule in West Virginia law (R. Neely, “The Primary Caretaker Parent Rule: Child Cus-
tody and the Dynamics of Greed” (1984) 3 Yale L. & Pol. Rev. 168).
Donald Saposnek also appeals to objectivity in his strategic model’s functional perspective
of behaviour, according to which “[w]ith very few exceptions, there are no angels or devils in
custody and visitation disputes. There are only double conspiracies, in which both parties play
their respective complementary parts in the ongoing conflict” (D.T. Saposnek, “Strategies in
Child Custody Mediation: A Family Systems Approach” in J.A. Lemmon, ed., “Successful
Techniques for Mediating Family Breakup” (1983) 2 Mediation Q. 29 at 47). The objectivity of
this and other pronouncements flows, according to Saposnek, from the view that family mem-
bers’ attempts to meet their needs are not intrinsically good, bad, honest, dishonest, right, or
wrong, but function merely to influence others (ibid. at 30). Agreement among family mediation
participants with respect to goals and boundaries –
a fundamental precondition for objectivity –
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Moore fails to critically pursue questions of gender in relationships of
exchange, and, in turn, fails to understand the dynamics of family domina-
tion. He states that the cause of structural conflict lies in the organization of
a relationship and in the patterns of interdependence that emerge from it.
Power is a variable which affects structure and which must be understood
“not [as] a characteristic of a person but rather [as] an attribute of a relation-
ship.”’59 Consistent with the systems focus on the “space-between”, Moore’s
dichotomy prevents him from locating the underlying sources of the prob-
lem. “Separate the People from the Problem”‘
is the command which the
procedural mediator obeys.
The stronger party’s right to dominate through generalized complemen-
tarity is also secured in Landau, Bartoletti and Mesbur’s contracted respon-
sibility model. Under the terms of the contract, the mediator, who will on
occasion meet individually with the husband and wife, “may share any in-
formation or concerns arising during the mediation process with either
party.”‘ 6’ Regardless of the information’s content, neither husband nor wife,
nor anyone acting on his or her behalf, “will take any fresh steps in the legal
proceedings between the parties with respect to those issues that are being
mediated.”‘ 62 By forbidding novel legal action, the mediator may dissemi-
nate information without putting the mediation process at risk. This ma-
noeuvre ingeniously provides legal support for mediation as an information-
sharing process, while simultaneously ensuring that a client is legally bound
to complete the mediation sessions, whatever the impact of the new infor-
mation.
On an informal level, the model assumes that parties are able to negoti-
ate on relatively equal terms, and thus asymmetry is generalized to mere dif-
ference. No mention is made of any agent who may have promoted differ-
is not a precondition of Saposnek’s brand. It appears in Moore’s procedural model, only to disap-
pear on closer examination.
“9 Divorce Mediation, supra note 13 at 268 [emphasis added].
,6o Fisher & Ury, supra note 141 at 17.
,6, Clause 11, found only in the closed mediation contract (Landau, Bartoletti & Mesbur, supra
note 15 at 214). The provision is unnecessary in open mediation.
62 Clause 10 in the closed mediation contract, ibid.; clause 13 in the open mediation contract,
ibid. at 218.
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ence as a means of domination, and who may continue to do so.’63 When the
spouses do figure as persons, distinct from the space between them, the
authors present their dominance and submissiveness as “difference in per-
sonality”.’ 6 Antagonism or unwillingness is thus conceptualized as a psy-
chological problem that can be mediated, not as a basis for client-inspired
legal action. Conceptualized in this way, antagonism or unwillingness can
thus be overcome by positive reinforcement “whenever the weaker spouse
demonstrates more assertive behaviour” and “whenever [the more dominant
spouse] demonstrates co-operative behaviour.”‘ ‘
In addition, under the terms of the retainer contract, the client parties
have the duty to “make full disclosure of all relevant information reasonably
required for the mediator to understand the issues being mediated.”‘ 66 There
is no corresponding duty on the mediator, despite the fact that Landau, Bar-
toletti and Mesbur emphasize the need for, and indeed, the existence of,
mediator impartiality. The retainer contract does not require the mediator to
supply clients with the information necessary to understand the implications
of having a mediator deal with the issues. In fact, the contract makes it the
clients’ responsibility to discover these implications by consulting a lawyer:
The parties are strongly advised to obtain independent legal advice, par-
ticularly prior to signing any written Agreement to ensure that they are
fully informed of their legal rights and obligations and the legal implica-
tions of such an Agreement. 6 ”
Martha Shaffer notes that lawyers are ineffective as client protectors
when they are excluded from mediation sessions. Her comments, although
made in reference to the final settlement agreement, are applicable also to
the retainer contract. She points out that it is virtually impossible for a law-
yer to judge the fairness of the mediation process which led to the creation
of a settlement agreement. While an agreement can be reviewed for obvious
breaches of the law, a lawyer cannot tell whether one of the parties was in-
163 Characteristic of much of their reasoning, Landau, Bartoletti & Mesbur’s rationale for power
imbalance, supra note 15 at 88, takes the form of a list: lack of information; difference in educa-
tion; difference in intellectual ability; difference in verbal ability; difference in culture or lan-
guage; difference in age; difference in socioeconomic status; difference in the availability of a
support system.
164Ibid.
‘” Ibid. at 89.
‘6 Clause 7 in the closed mediation contract, ibid. at 213; clause 6 in the open mediation con-
tract, ibid. at 217.
67 Clause 4 in the closed mediation contract, ibid. at 213; clause 3 in the open mediation con-
tract, ibid. at 216.
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R. PHEGAN – FAMILY MEDIATION
ordinately disadvantaged or was unduly pressured during the mediation
process.’68 The lawyer needs to understand the retainer agreement essentially
as an article of faith in the mediation process. Unless the lawyer endeavours
to understand it as such, and is prepared to say so to the client, his or her
advice will provide even more protection for unwilled asymmetrical rela-
tionships than will mediation without independent legal advice.’ 69
Irving and Benjamin appeal to focal neutrality170 to explain why they do
not assume a clear ethical responsibility to remove gender barriers to mean-
ingful client participation. They maintain that the issue of unequal negotiat-
ing power is ethically contentious because “the mediator’s willingness to ac-
cept standards of conduct or fairness … foreign to him or her” is at stake.”
Their statement implies that standards which are not foreign to the mediator
are those which operate within the familiar overarching standard of formal
equality, at least as understood and applied by behavioural experts. Placing
dominant/submissive patterning along a gender line is antithetical to the
TFM variety of neutrality.72 Even though TFM is rendered “feminist in-
formed”‘7 by an expansion of its value base, it offers little hope for signifi-
cant change. Much feminist critique comes from legal scholars characterized
by Benjamin and Irving as arguing “on the basis of principle, logic, and evi-
dence, rather than clinical experience.”‘ 74 Since TFM mediators inform
themselves on the basis of this dichotomy, feminist values selected for in-
corporation into their model could be expected –
as a matter of logic –
to
be those values most amenable to synthesis with TFM clinical practice.
It is thus not surprising that violence, which can be analyzed in a clinical
setting, is evaluated in the new feminist-informed TFM. The new TFM also
expands the notion of assessment processing to include an explicit inquiry
into “recent and regular” occurrences of violence and/or inappropriate
touching; the use of standardized detection instruments; and other means of
‘ Shaffer, supra note 2 at 188.
‘ Majury, supra note 2 at 149.
,The TFM ethic of neutrality is explained as “focal neutrality”, or neutrality which is case-
and context-specific. That is, different interests are given priority according to the particular case,
or to a specific phase or stage within the case. In this context of particularity, priority is given on
the basis of “desert”. “Desert” referring in behavioural science to need in opposition to right.
. Family Mediation, supra note 12 at 54-55.
‘ Ibid. at 85.
‘ See “Feminist-Informed TFM”, supra note 27.
,4 Ibid. at 134.
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scrutiny and screening. ’75 However, the authors conclude that “given vio-
lence that is current and ongoing (regardless of its severity), our experience
is that these couples always fail to meet our admission criteria, and so are
routinely referred out.’ 7 TFM’s brand of focal neutrality appears most re-
luctant to allow legal redress for any but the most abused of abused
women. 77 Benjamin and Irving’s approach, in effect, prolongs and com-
pounds the abuse. Furthermore, feminism itself appears to be conflicted over
the appropriate use of mediation where the relationship has been abusive.
Consequently, theorists like Irving and Benjamin have ample opportunity to
rearticulate feminist arguments in their own terms, since “there has yet to be
a definitive statement of the feminist position.”‘7’ However, in making that
point, the authors miss a central aim of feminist legal theory and practice:
“[T]o disrupt the impulse towards unifying and over-generalized theory
[without which disruption] the recognition of women’s specificities will be-
come part of the unshakeable hegemony of legal theory.”‘7
TFM instead continues to emphasize more straightforward patterns, such
as approach/avoidance and repetitive conflict.80 This emphasis side-steps
more complex issues, including the nature of human violence. In addition, a
focus on those patterns avoids client challenge to therapeutic mediator
authority.’ Returning to the Smith case study, TFM circulates John Smith’s
17
5 Ibid. at 146.
176 Ibid.
‘” Having come to the preliminary conclusions that no one was being harmed by mediation in
Ontario; that the process was voluntary; that legislation was in place for dealing with violence;
and that mediating abuse was to be distinguished from mediating “family law” issues in cases
where abuse was experienced, the Committee in effect recommended that mediation accommo-
date abuse. Extensive scrutiny, screening, and “safeguards” –
constituted
their response to concerns raised by the Ontario Women’s Directorate (Advisoy Committee Re-
port, supra note 3 at 74-80, 86-87).
extended abuse –
“”‘ Feminist-Informed TFM”, supra note 27 at 130.
“‘ Kathleen A. Lahey, “On Silence, Screams and Scholarship: An Introduction to Feminist Le-
gal Theory” in R. Devlin, ed., Canadian Perspectives on Legal Theoy (Toronto: Emond Mont-
gomery, 1991) 319 at 328.
j. Folberg & A. Taylor, designers of the social psychological model critiqued by Irving &
Benjamin, also overtly apply approach-avoidance theory in their work, J. Folberg, & A. Taylor,
Mediation: A Comprehensive Guide to Resolving Conflict without Litigation (San Francisco:
Jossey-Bass, 1984) at 59-60. Neither group of authors explains why we need rles originating in
a mechanical model of man, no matter how sophisticated their development, to govem how we
think about Western marriage and procedures for resolving some of its problems.
IS! Irving & Benjamin draw attention to the fact that, while unconscionability might be a con-
sideration for some mediators, fear of the husband’s dropping out might incline others to avoid
acting in accordance with any ethic of empowerment (Family Mediation, supra note 12 at 54).
Feminist-informed Irving & Benjamin state: “it remains unclear on what principled or ethical ba-
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accusations, threats and appeals for a “second” chance with Maria’s well-
reasoned desire to change the relationship. The therapist-mediator encour-
ages Maria and John to reminisce about earlier, more mutually satisfying
days, in order to “discover” whether there is a chance of reconciliation
(perhaps momentarily forgetting Maria’s clear expression of plans to the
contrary), and to confirm a suspicion that Maria still had to separate from
her parents (perhaps also forgetting that she decided to remarry first and
then confronted her mother’s opposition). On finding that “Maria would
have none of it … She wanted a divorce!”, 182 the mediator claimed that
Maria’s anger prevented Maria from seeing what was in the children’s best
interests. Tapping past happiness failed to conjure conciliation, but had pro-
duced anger, which then became a reason to place Maria in a therapy pro-
gram.
In therapy, competing explanations of Maria’s anger emerge. The thera-
pist sees it as a result of the mother’s interference, whereas Maria attributes
it to John’s neglect. These competing views could be transformed into
complementarity and ultimately consensus, by using several techniques si-
multaneously, such as separate caucusing, building trust, reframing, and
symbolic use of the children. During a separate caucus which put John
safely out of earshot, Maria is told that John needs Maria’s help to become a
good father. The therapist-mediator asks, “Would she be willing to provide it
for the sake of her children?”’83 Irving and Benjamin add that “[f]ramed in
this way it was difficult for Maria to say no.”‘ Guilt, said to play no part in
mediation, is precisely what this tactic is designed to evoke.
Consequently, Maria’s rational expression of her past and her needs is
converted into pathological anger inspired by her mother. Maria is worked
on to enlist her in John’s cause. John’s reasons for his anger with Maria are
also enlisted –
in his own cause. Further, John’s threats of harm are ignored
in this example of complementarity; in contrast with Maria, he need not feel
guilty.’s5 Treating John’s anger merely as a sign that his emotional separation
from Maria is far from complete, the mediator bases John’s therapy sessions
sis intervention should occur, thus avoiding both the appearance and the reality of arbitrariness”
(“Feminist-Informed TFM”, supra note 27 at 137).
“2 Fanily Mediation, ibid. at 116.
“u Ibid. at 120.
184 Ibid.
. This blame, inappropriately placed on Maria, is recognized by feminists as a pertinent ex-
ample of the misuse of complementarity by experts. Within the context of abuse, the concept is
also used to accuse the victim of provocation or, in incest, to blame wives for sexual and other in-
adequacies (Leitch, supra note 149 at 170).
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[Vol. 40
on the need to ‘normalize’ his responses to the separation. John, we are told,
needs to be affirmed as a person, a person who has felt betrayed and who
has been a caring father.’86 Not surprisingly, these tactics of affirmation also
take place during a separate caucus and under the heading of building trust,
similar to the orchestration of Maria’s cooperation by allowing her to doubt
John’s adequacy.87 Ultimately, TFM reinstates, in the privacy and confiden-
tiality of separate caucusing, what has traditionally been an overt and public
affirmation of fathers’ lack of emotional care and censure of female irra-
tionality.
C. Conclusion
The substitution of complementarity for asymmetry is a consequence of
the ideology of formal equality, which professes objectivity, neutrality, and
an appeal to reality. Mediators resort to the comforts of treating women and
men as formally equal, on the pretext that individual differences operate
within and across these groups. By treating men and women as formally
equal, mediation avoids having to redress systemic misuse and abuse of
women.
Conclusion
The trouble with modem theories of behaviorism is not that they are wrong
but that they could become true, that they actually are the best possible
conceptualization of certain obvious trends in modem society.
Arendt”‘
The mediation of family separation disputes is held out to the public as
an empowering process which is based on client autonomy while emphasiz-
ing client responsibility. This article has sought to investigate how auton-
omy, responsibility and related concepts are to be understood if the good
faith of those who hold out family mediation as empowering is to be pre-
served.
An examination of the organizational boundaries and goals in three rep-
resentative approaches to family mediation shows that autonomy and re-
“6 Family Mediation, supra note 12 at 118.
‘7 The caucus, a common mediation technique, is also used in the procedural and contracted re-
sponsibility models.
“‘ Supra note 1 at 322.
19951
R. PHEGAN – FAMILY MEDIATION
sponsibility are not viewed by any of these models from a standpoint which
values inter-subjectivity and dialogue. The practices of those models are
designed, rather, to ensure the maintenance of the mediation system: from
the point of view of the ‘control centre’, to ensure the maintenance of self.
Women are unable to speak in their own voices and to be heard within that
system. Based on the idea that “the individual is truly social and society
truly psychical,”” 9 mediation grants clients little in the way of an identity
separate from the family in mediation and little ability to reason without
mediation intervention.
Critical analysis of TFM and the procedural and contracted responsibil-
ity models shows that, despite distinctive emphases, each applies similar
techniques rooted in liberalism and in the economy of the mediation system:
contracted responsibility, consensus bargaining, and behavioural therapy. 90
Systems theorist von Bertalanffy oversimplifies criticism of a systems
model. He represents that criticism as nothing but fallacy. He claims that it
treats systems propositions as the whole explanation of any particular sys-
tem, “mar[ring] not only theoretical history, but the models of the mecha-
nistic world picture, of psychoanalysis and many others as well.”‘9 A less
obvious, but equally serious, problem is the assumption by those who apply
systems propositions to human groups that they need only be aware of other
variables, or give them play within systems parameters. This article argues
in support of the proposition that Foucault’s conclusions with respect to the
mechanical model of man are applicable to systems theory as it has
“progressed” to the present day and is “operationalized” in family media-
tion:
La Mettrie’s L’Homme-machine is both a materialist reduction of the soul
and a general theory of dressage, at the centre of which reigns the notion of
‘docility’, which joins the analysable body to the manipulable body. A
body is docile that may be subjected, used, transformed and improved.”9
W. Buckley, Sociology and Modern Systems Theory (Englewood Cliffs, N.J.: Prentice-Hall,
1967) at44.
‘” In the shift from liberalism to superliberalism, which for Benjamin is a shift from individual-
ism to system, the poles of the continua join to form a circle.
,9, Von Bertalanffy, supra note 134 at 30.
‘ Discipline and Punish, supra note 6 at 136.
