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Should Therapists Mediate?
By Hadassah Fidler, LLB

Mediators come from a number of professional backgrounds, but lawyers and therapists are seemingly the most highly represented within their ranks. It has long been a question of how mediators balance their multiple roles within mediation. Much has been written on how lawyers need to separate their legal role from that of mediator, and professional standards in this area are clear, but little has been written recently on the therapist acting as mediator.

The family/couples therapist as divorce mediator seems like a natural choice since there are many overlapping skills required of the therapist and mediator. This is one reason that therapists make excellent mediators. However, the question of suitability arises when the therapist has been treating one or both members of the couple in a therapeutic role and then switches to act as mediator to the same couple.

When mediation first emerged as a profession, it was envisaged by one of its most fervent advocates that couples therapists would use mediation to navigate divorce if a couple's relationship had broken down to the point of separation (Haynes, 1981). Earlier academics thought lawyers were implementing mediation devoid of the emotional elements and therefore saw the therapists' input as helpful, injecting some much-needed therapeutic and emotional skills into the process (Kelly, 1983). Today, the idea of including an emotional aspect within mediation is widespread (Glick).

Therapists who have treated couples have an advantage in that they may know all the relevant issues and may have knowledge of issues such as children. The therapist will have also spent time building up trust, which is essential to the mediation process.

The issues that arise when a therapist turns mediator stem largely from the need for the mediator to remain impartial and to avoid any conflict of interest. Model codes of standard have addressed the issue. The American Bar Association Code of Practice warns against mediating where there may be a conflict of interest. As seen, the main objections are directed at the impartiality of the mediator, and the appearance of neutrality. The onus is usually on the mediator to disclose any relationship and then, in the absence of any objection, decide for him- or herself if any conflict arises. If the therapist has been treating only one member of the couple and then subsequently mediates the divorce for the couple, it may appear that his/her neutrality has been compromised, whether or not that is actually the case. Dworkin, Jacob, and Scott address neutrality by listing the following four issues to look out for when trying to identify problematic cases (1991):

One: whether an alliance has been formed with one of the parties that could interfere with perceived or actual impartiality. This is the most crucial and in many ways incorporates the three further points mentioned below.

Two: how the request for the mediation arises. The request could come from the mediator or from one or both of the parties. A therapist who offers mediation services is much more likely to be perceived as having a conflict of interest, than one whose clients request that service from him or her.

Three: the nature of the request. This is relevant to the question of how detailed or complicated the mediation is likely to be, and whether the therapist and the parties have already discussed many of the issues that may arise in mediation. If the mediation is likely to be straightforward and simple, it may be easier for all concerned for this to be performed by the therapist.

Four: the time elapsed since the therapist had contact with the couple. Where there has been a significant time lapse between therapy and the mediation, any actual or perceived bias may have faded to such a point that there is no conflict in the therapist performing the mediation.

When both members of the couple request that the therapist continue as mediator, it may be helpful for the mediator to reflect on the conflicting interests that the therapist may feel. In mediation, there is hope of a settlement, and while mediators will acknowledge that this is not always possible, it is one of the main goals of the mediation.

In therapy, the end goals are less defined and more emphasis is placed on growth and development. This can be a hard switch for the therapist, who has been treating a couple towards building a stronger relationship, to suddenly move towards settlement in the context of permanent separation. There is also the possibility of transference of failure from the mediator to the couple if the relationship cannot be saved. Conversely, a residual anger may reside with one or both members of the couple at the perceived failure of the therapist to save the marriage.

In addition, issues discussed in marriage counseling are not the same as those in mediation. The division of property and arrangements for the children bring about a different dynamic than the one created when trying to resolve issues in a relationship. The switch in style from therapist to mediator may be hard for the parties to adapt to and can cause problems for the mediation.

The decision as to whether the therapist should act as a mediator is generally in the hands of the therapist, who must use his or her professional judgment to decide whether there would be any actual or perceived lack of impartiality on his or her own part. However, full disclosure is an absolute requirement, and the relevant issues regarding impartiality should be raised and considered. In addition to disclosure and discussions regarding impartiality, the therapist should explain how mediation differs from therapy and how this may affect any or all parties involved. In any cases of doubt, it would be wise to refer the couple to another qualified mediator.

Case Study: Sarah, Ben, and Gabriel
Names and details have been changed.

Sarah and Ben had been married for eight years and had three children. Over the last several years, they had begun to experience marital problems. Sarah began to have thoughts of leaving the relationship, but a good friend of Sarah's suggested that they try couples counseling before she took drastic action. Sarah's friend recommended Gabriel, who was known for being an excellent couples therapist. Although Ben was resistant at first to the idea of couples therapy, he agreed once he realized how close Sarah was to leaving the marriage. Sarah and Ben went weekly to Gabriel over a period of four months during which time Gabriel made significant headway into the issues that were affecting their relationship.

Both Sarah and Ben decided to make more of an effort to find ways to reconnect with each other and discover a way to make the relationship work. At the end of four months, Sarah and Ben felt that they had made progress and decided to take a break from therapy. Gabriel wished them well and told them that his door was always open to them.

Six months later, Sarah contacted Gabriel and said she thought that additional therapy would help her. Gabriel agreed and worked with Sarah over the next month. During this time Sarah came to the conclusion that she wanted to leave the marriage and that no amount of therapy would resolve her issues. Sarah spoke to Gabriel and asked whether he would he mediate the divorce, as he knew both her and Ben, and had knowledge of them both. Gabriel was faced with a dilemma. Although a good and trained mediator, his main practice was therapy-based. In his capacity as therapist, he had been working towards saving Ben and Sarah's relationship and now he was being asked to dismantle it. This led to conflicting feelings for Gabriel. He consulted with his supervising therapist, Mark. Mark laid out some questions for him to work through:

1. Did he feel impartial, or did he feel any form of bias towards either of the parties?

2. Did any of the parties feel that he might have any bias or lack of neutrality towards them, perceived or otherwise, especially in the light of him treating Sarah by herself?

3. Was he prepared to give up on treating Sarah or Ben following the mediation as any therapy subsequent to the mediation may have some retroactive feelings of bias towards the mediation process?

Gabriel thought over the questions and came to the conclusion that whilst he felt impartial and that he could act as a neutral mediator, his position had been compromised by the fact that he had treated Sarah separately from Ben and that Ben would feel that he might have some bias towards Sarah. Gabriel also felt that he wanted to leave the option to Sarah or Ben to come to him for therapy during or after the mediation process. Gabriel recommended to Sarah that she find an alternate mediator and gave her a few names of mediators. Gabriel continued therapy with Sarah throughout the divorce process.

— Hadassah Fidler, LLB, qualified as a lawyer in the United Kingdom and then retrained as a licensed mediator in both England and Israel.

References
Dworkin, J., Jacob, L., & Scott, E. (1991). The boundaries between mediation and therapy: Ethical dilemmas. Mediation Quarterly, 9(2), 107-119.
Glick, P. J. (2013). The emotional and evaluative elements involved in mediation. Chicago Daily Law Bulletin, 159(238).
Haynes, J. M. (1981). Divorce Mediation: A Practical Guide for Therapists and Counselors. New York, New York: Springer Publishing Company.
Kelly, J. B. (1983). Mediation and Psychotherapy: Distinguishing the Differences. Mediation Quarterly, 1983(1), 33-34.