In this part, three key points of criticism will be raised. Firstly, the current system has an unclear target group, is an incongruent mixture of elements and a connection between the forms of mediation is lacking. Furthermore, Norwegian mediation can be criticised for allowing the mediator to mix roles, for not securing the children’s right to participation in decision-making and for having mandatory mediation. However, the three latter issues will not be discussed in this text.
4.1 Unclear Target Group
Norwegian child custody mediation has an unclear target group. Two decades ago, Ekeland and Myklebust (
1997) noted that mediation in Family Counselling Offices did not recognise the various need of families. Mandatory mediation at separation is targeted at all separating families. Thus, the level of conflict and the number of and severity of risk factors for the well-being of the child and for high conflict vary. Many parents would find, and actually have found, a solution on their own. Low conflict families do not need dispute resolution services. However, they may wish to have information on shared parenting, supporting the children, factors they should take into account when selecting care arrangements and social benefits.
Families with moderate conflicts may benefit from mediation. However, settlement, as such, may not be the key issue in the family. Rather, the parents may need help to improve communication, discuss specific issues and recognise the best interests of their child(ren). Discussing some of the issues or providing facilitative mediation requires more than 1 h and may require, in many cases, more than 7 h.
Finally, high conflict families
often need more intensive and more specialised services than low to moderate conflict families. In some cases, mediation may not be an appropriate dispute resolution method and may even put the child at risk of abuse or neglect. In other high conflict families, dispute resolution services should be tailored to give the families proper help. In absence of a screening mechanism and in light of the limited first session, one may ask if the particular needs of each family are identified and if, and how, the services can be tailored to each family (Gulbrandsen
2013; Gulbrandsen and Tjersland
2013; Ådnanes et al.
2011a). More than one-half of the high conflict families leave mediation after 1 or 2 h without agreement and without reduction in the level of conflict (Tjersland et al.
2015). Currently, some Family Counselling Offices are piloting a model for high conflict families where a set of individual, family and group sessions are combined. In the model, two employees “co-mediate” to offer the best help to reduce the level of conflict. The initial results are encouraging, with more families engaging in mediation beyond the first mandatory hour.
In Norway, neither mandatory pre-action mediation nor court-connected custody mediation has been designed with high conflict families in mind. Considering that only 10–12% of families instigate child custody proceedings in court, there is reason to believe a notable part of the families have a persistent high level of conflict. Yet the bill that introduced court-connected custody mediation hardly touches upon the topic of high conflict families. It seems to presuppose families belong to two categories: one where the child risks abuse or serious neglect and one where the parents are stuck in a conflict but are able to resolve it if the mediator focuses on constructive communication and the positive experiences of co-parenting. In fact, many families fall between these categories: the child does not risk serious neglect, but focusing on improving communication and positive experiences will not suffice to reduce the level of conflict (Tjersland et al.
2015; Nylund
2012; Nylund
2011; Ådnanes et al.
2011a; Nylund
2008). There is also a widespread notion that a conflict is never the fault of one party. Rather, the reason for persistent conflict lies with both parties. However, often the behaviour of one parent is an important source of conflict (Gulbrandsen
2013; Dutton et al.
2011; Demby
2009). Nonetheless, a skilled mediator cannot regard one parent as the “good one” and the other as the “bad one”. Nor can a mediator necessarily assume that both parents have equal fault and equal parenting skills. Given the complexity of familial relationships, the mediator needs sufficient tools to deal with a range of reasons for persistently high levels of conflict.
Norway is the only Nordic country with mandatory mediation for all separating couples and the only Nordic country with mandatory pre-action mediation
. Denmark has a system with a mandatory pre-trial counselling or mediation session. The service is similar to the Norwegian model of services, but it distinguishes between family counselling and mediation. Both services are in addition separate from adjudicative processes (
www.statsforvaltningen.dk). In Finland and Sweden, mediation is offered on a voluntary basis outside courts. Yet the percentage of divorcing families instigating child custody litigation is roughly the same.
Although the research community has recognised that the current system does not serve the needs of high conflict families, the system has been subject to limited discussion. Currently, no triage mechanisms are in place to assess the conflict level in the family and the sources of conflict, nor to determine appropriate services. Mediators are not offered systematic training on issues related to high conflict families. Therefore, families are offered inappropriate or inadequate services to help them manage their conflict and teach them effective post-divorce parenting skills.
4.2 Overly Broad Definition of Mediation
Mediation is defined very broadly. At the Family Counselling Office “mediation” consists of information, advice, brief therapy and dispute resolution. Mediation may be facilitative, evaluative, therapeutic, narrative, transformative or simply trying to induce the parents to settle. The consequence of an unclear concept of mediation and bundling of services is that families often leave mediation after the first hour (Kjøs et al.
2015; Tjersland et al.
2015; Gulbrandsen
2013; Ådnanes et al.
2011a,
b; Gulbrandsen and Tjersland
2010; Haugen and Rantalaiho
2010). Thus, the positive potential that mediation and other services could offer remains untapped.
According to the mediators, mediation is often ritualised, as the regulations do not give them the power or tools to deal with the underlying conflicts. Most parents leave after the mandatory first hour without getting much help to manage the conflict. Furthermore, both parents and mediators find that many of the settlement arrangements arrived at during mediation are sub-optimal. Parents agree to a mediated settlement because they fear court proceedings could lead to a worse option, not because they find the mediated agreement good.
When mediation is a mélange of services, the family may not pick the most relevant services. Families with low or moderate levels of conflict may reject the services because they do not need help to resolve a conflict, as they have already agreed on most issues. This may be true, however, they may like to discuss the needs of the children or challenges related to co-parenting. Families with underlying risk factors, regardless of the level of conflict, could find it helpful to discuss the underlying problem. However, they may not be aware of the services available to them or the mediator may lack (sufficient) training on the issue. In some families, key issues may remain unnoticed due to a lack of proper screening and awareness of the mediator.
As the source of the persistent conflicts is not recognised or the mediator lacks the knowledge and skills to provide a successful intervention, many families run a risk of not receiving the help they need. If the families perceive that the Family Counselling Office has limited help to offer, they may not be induced to participate in mediation apart from the mandatory first hour.
The limited timeframe for mediation may also hamper mediation. Successful interventions may be time-consuming—both in terms of the number of mediation sessions and the time-span of mediation. Hence, mediation is often not an avenue to swift resolution. The more limited the timeframe and the more the focus lies on settlement, the more parents may feel pressured to adopt a dissatisfactory settlement. This is probably particularly true in a country such as Norway where going to court is the exception. In Norway, it is generally understood that a “successful” divorce is a “happy” divorce where the parents agree on all issues.
In third-tier court-connected custody mediation, the understanding of mediation is broad. The tasks and roles of the mediator are manifold and may lead to conflicting roles and use of contradictory strategies. The methods of “mediation” are not standardised, nor is there committed work towards developing guidelines for best practices. While uniformity should certainly not be a goal in itself, continuous and persistent work towards developing practices would be beneficial to improve the quality of services and assure appropriate interventions.
Section 61 of the Children Act regulates court proceedings in child custody cases. In addition to court-connected custody mediation (expert-led or assisted) and a regular trial, the judge can request the parties to mediate at the Family Counselling Office or another out-of-court mediation programme. Although the provision is silent on the use of other types of dispute resolution processes, the legislator has clearly understood mediation in a broad manner. The role of the court-appointed expert-
mediator is to give advice to the parents. Moreover, the expert-mediator may use evaluative techniques. Thus, mediation could be a highly, or almost purely, evaluative process. Evaluation could be appropriate in some situations, but, in other situations, it could be counterproductive. Therefore, using evaluation requires knowledge and skills on the when and how evaluation is appropriate (Bernt
2018).
Court-appointed
experts and staff at Family Counselling Offices are licensed psychologists, social workers or psychiatrists, often with a specialisation in families and some additional training. However, no mediation training is required, nor are there any guidelines as to the content of such training. Training on issues related to specific issues is haphazard. The lack of comprehensive mediation training reduces the awareness of the concept of mediation, its uses and abuses, techniques used in mediation and the relationship between mediation and other forms of dispute resolution.
A particular problem related to offering mediation as a mélange of different services relates to consent. If almost any service or method for resolving disputes fits within the definition of mediation, then the families will not know which type of process they consent to. The right to informed decision-making and self-determination is reduced. Monitoring quality becomes difficult or almost impossible. In court-connected custody mediation, leaving the process may be difficult, particularly when the option is litigation where the expert mediator shifts to the role of expert evaluator, and the judge-mediator becomes the judge (Bernt
2018).
4.3 Relationship Between the Three Tiers of Mediation
Ideally, a dispute system should be designed to prevent conflicts from arising and escalating. Disputes should be resolved at the lowest possible level using the least intrusive mechanisms. Each level in the system should build on the earlier levels and bring loops back to the lower levels of the system.
The Norwegian child custody dispute system is incoherent. The same rules regulate the first two tiers, mandatory post-separation mediation and mandatory pre-action mediation, but fail to recognise the difference between the needs of the target group. In mandatory pre-action mediation, the family has already faced separation and lived with separation for at least 6 months. The conflict level is on average higher, and risk factors are more prevalent. Still, the rules and regulation are identical.
Court-connected custody mediation is, in practice, fully separated from mediation in Family Counselling Offices. Family Counselling Offices do not provide information to the court on mediation or risk factors present in the families. Thus, mediation in courts starts as if there had not been earlier attempts to mediate the case. Even though a family has only participated in the first mandatory hour of pre-action mediation, only a few courts regularly loop cases back to the Family Counselling Office. Although exchange of information may compromise the confidentiality of mediation, and sending a case back for mediation may pressure parents to settle, out-of-court mediation and court-connected custody mediation should be coordinated. The system should be more coherent with each level building on previous levels and better coordination between the levels.
In a comparative context, mandatory mediation for separating families and mandatory pre-action mediation does not seem to have reduced the percentage of families resorting to court proceedings. The system’s design does not seem better than in countries with voluntary mediation.
4.4 Particular Problems Related to Court-Connected Custody Mediation
Court-connected custody mediation is the rule in cases on child custody, residence and contact. Mediation is seen quite uncritically as a superior method of dispute resolution, suitable to most cases. The only exception is cases where the child risks abuse or neglect.
The regulation is based loosely on theories of general child custody mediation and blatantly disregards the discussions on high conflict families. Considering only approximately 10 % of all separating parents instigate court proceedings, many if not most of these families could probably be characterised as “high conflict”. Consequently, the dispute resolution system should be set up accordingly.
Currently, no triage is in place. Judges trust that legal counsel will mention any relevant information indicating child abuse or neglect to enable the judge to direct the case to traditional court proceedings rather than court-connected custody mediation. There is no uniform standard of what constitutes abuse or neglect disqualifying the case from mediation. If physical violence is present in the family, does only violence against the child disqualify mediation? Does severe violence against a parent also disqualify a case and, if so, on what grounds? Although the families have attended mediation at the Family Counselling Office, there is usually no exchange of information between courts on the level of conflict or sources of conflict. Neither does the court use triage.
The content of mediation and the role of the mediators are discussed in more detail by Camilla Bernt (
2018). Here, it is sufficient to make a few remarks on mediation vis-à-vis providing diversified services. First, the court invites an expert to assist the court in mediating the case by providing information and advising the parents, and, if necessary, to decide the case. In spite of the widespread use of experts, the training
does not have sufficient focus on mediation and issues in high conflict families. Experts without the specific training are frequently used. The content of the training is geared particularly towards the traditional role of a court appointed expert rather than that of a mediator, parenting coach and counsellor (Agenda Kaupang
2017).
Awareness of different causes of high conflict levels is relatively low particularly among judges, as is the knowledge of their consequences on parenting and the children.
7 When combined with an understanding of mediation as an inherently good form of dispute resolution and settlements as inherently good outcomes, the result may be less than optimal. Some parents report that when they voice a concern for substance abuse problems, or even (sexual) abuse of the child, the allegation might turn against them. The parent voicing the concern is accused of using a tactic of escalation or an attempt at disrupting the process towards settlement. The focus on settlement results in some parents feeling pressured into a settlement they do not agree with (Stang
2013; Koch
2008).