Thus mediators have several ethical dilemmas to resolve. Who do they believe… the skillful and apparently sincere parent who has the love of the children or the parent who has been rejected by the children for a number of very convincing reasons? What should be done about the obvious power imbalance favoring the alienating parent? After all, the alienating parent has the children, they are well bonded and close to one another, so the court is likely to favor leaving the children in the home of the alienator when an understanding of PAS is lacking, which is often the case. How does the mediator build trust with a party who is intent upon deception and manipulation? Walsh & Bone (1997) warn, “Make no mistake about it; individuals with PAS will and do lie. They leave out of their testimony pertinent details or they maneuver the facts in such a manner to create an entirely false impression.” A study of the characteristics of children that refuse post-divorce visits revealed that the custodial parents of the refusers often exhibited psychopathology. (Racusin, et. al, 1994) Turkat’s study on visitation interference highlights the cooperation issue. “A parent who has continually interfered with visitation may state … that he or she will comply with the nonresidential parent’s visitation request. Immediately following the hearing, the custodial parent returns to the visitation interference pattern, knowing that months may go by before a return to court.” (1994, p. 741)
When is Mediation Not Appropriate in Custody Cases
“Mediation is an informal, but structured process in which one or more impartial third parties assist disputants in talking about the conflict and in negotiating a resolution to it that addresses the needs and interests of the parties. Mediators do not impose a settlement and participation in the process is usually voluntary.” (Umbreit, 1995, p. 24) By definition, mediation is a voluntary process where no one is compelled to participate or to reach an agreement. A notable exception to “voluntary participation” is the mandatory mediation built into the judiciary system in many states. The question is raised whether it is incongruent to mandate unwilling parties to participate in a process that is designed to be cooperative, interactive and participatory. Fuhr (1989) concluded in his review of existing literature on mediation that there is a need for empirically sound methods for discriminating between couples who were ready for mediation and those who were not. (in Hysjulien et al, 1994) Mediation may be a step that should be bypassed in cases with severe PAS symptoms. Cartwright (1993) states that while negotiation is often a good solution in other forms of litigation, it tends not to be effective in cases of PAS. He asserts that “… the lack of a swift, clear, forceful judgement is often perceived by the alienator as denoting approval of the alienating behavior. This tends to reinforce the behavior and renders a great disservice to both the child and the petitioning parent… Courts must not fall victim to the alienator’s scheme of stalling for time in order to continue the program of vilification.”
Issues of abuse and violence are prevalent in custody disputes. It has been argued that mediation may not be appropriate for couples who have experienced domestic violence because it may place women and children at risk for ongoing intimidation (Hysjulien, Wood & Benjamin, 1994). The mediation process can and has allowed an abusive spouse to maintain control and domination with the sanction of the courts (Geffner & Pagelow, 1990). At least three states recognize the paradox of mediating in abusive relationships, and in North Dakota, Oregon, and Minnesota, mediation is waived where parties allege domestic violence or child abuse. (Bruch, 1988 and Sun & Thomas, 1987 in Geffner & Pagelow, 1990) While PAS has never been formally linked with domestic violence or spouse abuse cases, the issues of control, domination and emotional abuse are present in both types of cases. PAS and child brainwashing are forms of child abuse (Chessler, 1986; Clawar & Rivlin, 1991; ; Gardner, 1992, Herman, 1990, Walsh & Bone, 1997, Ward & Harvey, 1993), and, as such, could fall under the same precautions as domestic violence cases with regard to mandatory mediation.
A Mediation Model for Suspected PAS Families
The question remains about whether mediation is an appropriate form of intervention in cases of Parental Alienation Syndrome. Pearson and Thoennes (1986) contend that mediation will not transform hostile couples into cooperative ones and it will not eliminate future conflict, but it is perceived to be a less damaging intervention than court. Lund (1995) believes that it is important to lower the overt conflict in PAS cases so that the children are not “triangulated” into the parents’ conflicts. In a sense, the mediator can become the person who is triangulated instead of the child. A mediator can also help inflexible custodial parents respond to changes in visitation schedules and other situations that require cooperative interaction between the parents (Lund, 1995, p.315).
Incorporating the issues raised in this paper, a mediation model that would be designed to intervene in custody disputes where PAS is suspected must address four areas of concern. First the need for mental health expertise both to diagnose the underlying motives and extent of alienation and to prescribe appropriate therapeutic interventions prior to any agreement or decision on custody and visitation. Secondly, the mediation process would need the assurance that the court will take swift, clear judicial action when necessary to discourage tactics of stalling and deception by the alienating parent. The third component needs to balance the power discrepancy felt particularly by the target parent who has been isolated from the child’s life and love. The last and very critical element of a mediation model is a mechanism to manage the manipulative and deceptive behavior exhibited by the alienating parent, as well as an ongoing process to monitor cooperation with court orders or agreed upon steps in the mediation process.
An additional critical element is the determination of which PAS families are “ripe for mediation.” It is very possible that in mild to moderate cases of PAS, mediation could be effective to achieve a number of goals to help conflicted parents. However, in severe cases, the research cited herein indicates that negotiating with an alienating parent who exhibits serious psychopathology would be futile. Premediation screening could be used to determine which cases are suitable for mediation, which is also a recommendation for mediation of domestic violence cases advanced by the Toronto Forum on Women Abuse and Mediation of 1993 (in Umbreit, 1995, p. 109.)
Intervention models that may be useful for PAS cases have been developed and proposed by various researchers. Four such models are referenced in this review and selected elements from these models support the major areas of concern outlined above. The mediation models are 1) the American Association for Mediated Divorce (AAMD) (in Herman, 1990), 2) the Stepwise Mediation Process for Psychiatric Family Mediation and Evaluation Clinic at the University of Kentucky Medical Center (in Miller & Veltkamp, (1987), 3) a three phase system of child custody dispute resolution proposed by child psychiatrist, Dr. Richard Gardner (in Gardner, 1992), and 4) the Remedial Plan described by Michael Walsh, a certified family lawyer, mediator and arbitrator and J. Michael Bone, Ph.D., a psychotherapist and certified family law mediator (in Walsh & Bone, 1997).
In the AAMD process, couples are first screened to determine their suitability for mediation, and their motivation and ability to negotiate with each other are assessed. Couples that seem appropriate and are willing to enter into the process, sign a pre-mediation agreement and begin sessions. Co-mediators are suggested by the AAMD (Herman, 1990, p. 48). The concept of co-mediators representing each gender, and complementing one another’s expertise in mental health, legal background and mediation skills fits very well with the criteria established in this paper for a useful mediation model.
Need for Expertise in Mental Health
The first step proposed by Gardner in his three-phase custody dispute resolution system is mediation. He recommends that training programs would have to be set up to ensure that only qualified mediators could be utilized. He envisions court-designated mental health clinics that would provide mediation services at a fee commensurate with the parents’ financial situation (Gardner, 1992, p. 313). Implicit in the Stepwise Mediation Process is the fact that the process is conducted by professionals trained in psychiatry at the Child Psychiatry Clinic of the University of Kentucky Medical Center. In the Stepwise model, it is first determined if reconciliation or mediation is possible. When mediation proves unsuccessful, there is a shift toward (psychiatric) evaluation (Miller & Veltkamp, 1987). Warshak (1992) also recommends that a professional with a background in child psychology would be preferable to an attorney-mediator in disputes involving children because such a mediator could better evaluate the children’s needs (p. 221).
Need for Swift, Clear Judicial Action
Walsh and Bone argue that successful intervention of PAS requires coordination by the court and all members of the legal and mental health community. The court appointed psychologist initially identifies the causation factors and determines the motives of all family members, the defense functions of PAS in the family, and the specific techniques and patterns involved. When the psychological evaluation is completed, it is forwarded to the court. At that point, the parents can attempt to negotiate a plan. If the conflict continues, the court must quickly intervene and use its authority (Walsh & Bone, 1997).
Dr. Gardner also recognizes the need for court intervention if mediation breaks down. Step two of his three-phase system proposes an arbitration panel consisting of two mental health professionals and one attorney who are empowered to subpoena evidence and interview witnesses. The arbitration panel would work within the court structure (Gardner, 1992, p. 315). Hopefully, the decision of the arbitrators would be timely, clear and have the quality of a binding legal decision. It is certainly likely that arbitration would result in a more expedient decision than court litigation.
Power Imbalance Favoring Alienating Parent
In PAS, the alienating parents seem to have power tipped in their favor. The children profess love for them and a desire to live with them. The court, legal and mental health professionals may initially be swayed by the child’s stated preference, particularly if s/he is an older and articulate child. After all, PAS is not widely recognized; there are relatively few individuals with sufficient expertise to diagnose PAS in the early stages. As Walsh and Bone (1997) point out, many therapists shy away from making a PAS diagnosis for fear of being wrong. Clawar and Rivlin (1991) agree, stating that many professionals know it exists but are frustrated with detecting it, objectifying it, and knowing what is best to do for the parents and children.
To compensate for the natural tendency to favor the alienating parent, mediators must be well trained in detection, causation, underlying motives, and common patterns of deception that may be employed by the family members (including the children.) Gardner (1992) recommends that the mediators be trained in mental health, family law, and mediation skills. He believes training in intensive custody evaluations is also necessary (p.322). In addition, the natural gender difference can be addressed by using co-mediators of each gender.
Dealing with Manipulation, Deception and Uncooperativeness
The co-mediation team process advocated by the American Association for Mediated Divorce (AAMD) would consist of an impartial lawyer and an impartial mental health professional meeting with the divorcing couple. The model also uses a process to screen couples prior to mediation as well as the pre-mediation agreement mentioned earlier. The couple understands that they are working toward a three part agreement: 1) part one reaffirms the need for both parents to be actively involved with their children after the divorce and the need for mutual cooperation toward this goal; 2) in part two, both parents agree how to share the duties of parenting and how to cooperate when decisions are made; 3) part three includes a foundation for agreement about financial issues and provides for future mediation should problems arise (Herman, 1990, p. 48). Parties who cannot agree to this type of openness and cooperation would be screened out to bypass the option of mediating an agreement.
Additional provisions or groundrules could be addressed up front that specify unacceptable behaviors such as deceptions, fabrication, accusations, allegations and the like. If the court is already in possession of a psychological evaluation that identifies PAS, the alienating parent may be better off putting aside his or her manipulative tactics in favor of negotiating. If s/he is not willing or capable of cooperating, the court needs to make it clear that s/he may lose custody until s/he is emotionally fit to cooperate with the other parent.
Recommendations for PAS Mediators
It is clear from this study that the merits of mandatory mediation in contested child custody is questionable. Unsuccessful mediation may prolong emotional damage to the family by delaying the kinds of intervention and treatment necessary to alleviate brainwashing and programming of the children. If PAS symptoms are present in 80 to 90 percent of child custody disputes as suggested by Dr. Gardner (1992), it follows that mediators dealing with custody cases need a thorough understanding of the challenges prevalent in PAS families.
In their twelve year research study of 700 to 1000 cases of programmed and brainwashed children, which is published by the Family Law Section of the American Bar Association, Clawar and Rivlin (1991) conclude that the legal system in most states in not currently adequate to protect children from this form of abuse. They also determined that 80 percent of the children wanted the brainwashing detected and terminated; and that there was often a substantial difference between a child’s expressed opinion and their real desires, needs and behaviors ( pp. 163 – 172.)
An intervention model is needed that is appropriate to the capacity of the alienating parent to recognize and abstain from his or her programming tactics, which may be unconscious. A screening process could be utilized to determine which families are suitable for mediation and which cases require mental health intervention before parties can negotiate.
Co-mediators need knowledge and skills which include mental health expertise, an understanding of child custody evaluation techniques, familiarity with the legal system, and alternate dispute resolution skills that facilitate building trust and cooperation between disputing parties. Additional skill development techniques should be taught to help professionals with detection of PAS and methods to objectify it; determination of the extent of the psychological and emotional damage done; and how to develop an appropriate remedial plan.
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