Couples experiencing difficulty reaching agreement in mediation focus more on relationship issues; their mediators shy away from these issues and direct couples to discuss more factual issues.

Issue Devel opment in Divorce Mediation William A . Donohue, Judith Lyles, Randall Rogan

Communication issues in the areas of conflict and dispute resolution continue to gain favor among scholars interested in discovering interper- sonal processes affecting conflict outcomes (Roloff, 1987). Of particular interest is how third parties facilitate more cooperative interaction among highly contentious divorcing parents in the context of divorce mediation (Donohue, Allen, and Burrell, 1988). While this research has been useful in identifying strategies and tactics mediators use to manage the process of communication, very little research addresses the substantive features of divorce mediation interaction. What kinds of issues and problems do mediators choose to address, and how do they manage these issues to build toward disputant agreements?

The purpose of this chapter is to extend research conducted previously (Donohue, Allen, and Burrell, 1988) to address these two questions. To accomplish this goal, this chapter reviews research focusing on the ways in which issues are managed in dispute resolution. Then, an issues cate- gory scheme is formulated and used to analyze a set of divorce mediation transcripts. The study concludes with a discussion about the pragmatic value of the results for mediators.

J. B. Kelly (ed.). Empirical Research in Dtvorce and Family Medialion. Mediation Quarterly, no. 24. San Francisro: Jossey-Bass, Summer 1989. 19

20

Research Overview

Roloff’s (1987) review of research focusing on communication in con- flict rtveals that we know a great deal about why and how people fight. For example, role conflict may promote fighting. Often, people have difficulty managing the responsibilities of multiple roles that pull them in many directions at once (for example, parent and dedicated, tireless emplciyee). Such conflicts may promote stress, which obstructs the pro- ductive management of conflict. Or individuals may attribute feelings to the other that are inaccurate. Left untested, such inaccurate attributions can lead to mistrust and close off communication that might correct the problem. Roloff’s review also indicates that people use many different ways of managing these disputes. Options range from highly competitive approaches emphasizing individual differences and needs to highly coop- erativia approaches emphasizing collective objectives. The method selected often depends on the history of the dispute in relation to individual goals.

However, Roloff‘s (1988) review-and conflict research, in general- fails to address a third important dimension of the conflict context: what peopll. fight about. For some reason, the substance of peoples’ disputes remains understudied. Fields such as political science often use case stud- ies to discuss the substantive features of various negotiation episodes (see Rubiri, 1981; Zartman, 1978). Unfortunately, researchers in communica- tion, 1 )sychology, and sociology appears less interested in addressing the substantive features of disputes. This lack of interest may stem from a desire to track how the conflict is managed instead of addressing the substance of those disputes.

One area in communication focusing on the manner in which sub- stantive issues are processed deals with argumentation and bargaining proce\ses. In a series of studies, Putnam and colleagues (Putnam and Geist, 1985; Putnam, Wilson, Waltman, and Turner, 1986; Putnam and Wilson, 1987) found that certain arguments communicated firm resolve and a desire to proceed distributively while others revealed a willingness to proceed integratively in the dispute. In a review of research focusing on ne!;otiation from an argumentatioddebate perspective, Keough (1987) conclrided that analyses of arguments ought to play a wider role in nego- tiatiori research.

Oiie attempt to classify the substantive features of issues is found in Wehr’s (1979) conflict map. This map consists of a set of conflict features intended to help users analyze their interpersonal conflict. In this map, Wehr identifies four types of issues: (1) facts-based, or disagreement about the truth or falsity of some perception/judgment, or the existence or nonexistence of some phenomena or event; (2) values-based, or disagree- ment # tbout prescriptions related to policies, relationships, or some other

21

source of conflict; (3) interests-based, or disagreements over wants and the distribution of resources, such as power, privilege, rewards, and so on; (4) nonrealistic issues, or disagreements originating elsewhere than in these substantive categories, including interaction style, quality of com- munication, or aspects of the immediate physical setting such as discomfort.

Despite its lack of empirical validation, this issue typology appears well suited to categorizing issues arising most often in the divorce medi- ation context. The reason is that most custody and visitation disputes center on such problems as (1) desired visitation arrangements (interests); (2) the suitability of the other parent (values); (3) the extent to which the parent has complied with past arrangements (facts); (4) and deep-seated emotional issues about prior relational problems, feelings about the other, or past failures that have little or nothing to do with the substan- tive nature of the dispute (nonrealistic). In addition, these categories can be arranged on a continuum suggested by Coser’s (1956) distinction between realistic and nonrealistic conflict. Whereas realistic conflicts arise from frustration of specific demands, nonrealistic conflicts arise from a need of tension release. The most realistic, straightforward dis- putes arise from factual disputes because they are based simply on “what is” in the world. At the next level of abstraction are interests that are based on “what I want” in relation to “what is.” The third level, values, goes even further to provide a rationale and a moral foundation for “what I want” to “what’s the right thing to do.” Finally, we move to the extreme nonrealistic conflict based on emotional/relational problems that serve to vent frustrations. Such disputes can border on value impera- tives because they deal with problems of trust, control, or intimacy, yet they are not directly relevant to the substance of the dispute.

Expectations

Unfortunately, trying to determine which issues are likely to dominate agreement and deadlocked mediation sessions is difficult, because no empirical evidence is available to guide such a prediction. However, in a recent paper, McIsaac (1986) indicated that emotionally enmeshed families experience greater difficulties settling their disputes. Enmeshed families simply cannot resolve key relational differences separating them. In another paper, Staffeld (1987) indicated that he caucuses with couples prior to mediation to learn about their relational histories. When he learns that couples wish to bring up relational issues related to past problems, he knows that agreements will be more difficult to reach and sustain, since trust is problematic in these situations. Thus, we might suspect that mediations dominated by nonrealistic, or emotional/rela- tional, issues might prove more difficult to settle.

22

Given these perspectives, the following hypothesis can be for- warded: relational issues are likely to dominate deadlocked mediation sessions while interest issues are likely to dominate agreement-centered mediations.

Mediation Research Methods

Transcript Features. Twenty pre- and postdivorce custody/visitation disputes (ten in which agreement was reached and ten in which agree- ment was not reached) were transcribed following the rules for transcrip- tion ])resented by Schenkein (1978). The audiotapes were part of the approximately eighty collected by the Divorce Mediation Research Project (1981-.1984), funded by the Children’s Bureau of the U.S. Department of Health and Human Services (90-CW-634) and administered by Jessica Pearson, director of the research unit of the Association of Family and Conciliation Courts, Denver, Colo. The twenty sessions used in the pres- ent study came from the various branches of the Los Angeles County Family Mediation and and Conciliation Court. Any personal names in the transcripts were blacked out to ensure the anonymity of the disputants and the mediator.

Coding Procedures. The unit of analysis used in this study was the unintinrrupted talking turn. To begin the coding, the authors identified and numbered each utterance in each of the twenty transcripts. Each utterance was coded using the set of issue categories identified in the first part ctf this chapter with the addition of a fifth category-“other”- which was used when no issue was apparent in an utterance. Coders were instructed to follow a specific set of procedures in applying these issue (,odes. First, they were trained to code both the mediator’s and the dispulants’ utterances. For the mediator, the coders were instructed to identify the type of issue the mediator directed the disputants to discuss. If the mediator did not direct the conversation toward a particular type of issue, then the utterance was coded as “other.”

Using Guetzkow’s (1950) reliability formula, the categorizing reliabil- ity fot this coding procedure using two coders over five categories was 0.91. ‘I‘his reliability estimate was considered sufficiently high to proceed with clata analysis. The twenty transcripts revealed 2,486 issue comments by the husband, 2,377 by the wife, and 1,927 issue directives by the medi- ator. Approximately 3,800 utterances were coded in the “other” category, since 110 issues were disclosed in these utterances.

Research Results

To analyze the data, i t was judged best to divide each transcript into three equal time periods to determine how issues developed over time.

23

This procedure resulted in three variables in the study: time (three peri- ods), outcome (agreement-deadlock), and speaker (husband-wife). The three-way ANOVA was used, since the issue categories were judged to be ordinally related to one another, with the following values: emotional/ relational = 4, values = 3, interests = 2, factual = 1, and other = 0.

Using these procedures, the three-way analysis of variance (ANOVA) revealed a significant two-way, time-by-outcome interaction (F = 27.05, df = 2/4862, p < .Ol). Table 1 reveals that the husbands and wives were talking about the same issues within condition, but across agreement conditions, they appeared to be talking about very different issues. The agreement couples addressed issues at the more factual/interest end of the continuum, while the deadlock couples quickly escalated their interaction to the value/emotional-relational issues. This finding supports the hypothesis that argues that couples in the deadlock condition address more relational issues as time continues.

An example of these relational issues can be found in the following statement made by a wife: “There’s a boundary line he likes to cross and not respect me as a human being. He shows up at my house unan- nounced and uninvited. I’ve tried to tell him as simply as possible, ‘don’t come to my house uninvited.’ He came by at six just when we were eating dinner.” In this statement, the wife brings up the issue of respect and claims that the husband does not respect her privacy at home. The respect issue is relational in the sense that it is a problem that affects how she feels about her husband and how they can relate to each other as individuals.

To learn whether or not the couple was complying with the me- diator’s requests to discuss certain issues, a three-way ANOVA was also conducted (couple-mediator x agree-deadlock x three equal talk-time segments). The results revealed a significant three-way interaction (F = 4.14, df = 2/6789, @<.02). Table 2 reveals that agreement mediators were more successful at gaining compliance from their couples, while deadlock mediators had less and less influence over their couples as the interaction progressed. These differences are graphed in Figure 1. These

Table 1. Interaction Segment by Outcome Means and Frequencies

Outcome Interaction Segment ~~~

1 2 3 Agree 2.08 2.19 2.18

(980)a (1,011) (977)

(565) (696) (634) No agreement 2.09 2.85 2.61

aNumber of utterances in parentheses

24

Table 2. Interaction Segment by Speaker by Outcome Means and Frequencies

Outcome = Agree Znteraction Segment

Speaker 1 2 3 Dispi.1 tants 2.08 2.19 2.18

Mediator 1.68 1.92 1.86 (9807 (1,011) (977)

(429) (390) 1424) -.. Outcome = No agreement Interaction Segment

Speaker Dispi itants

Medkrtor

2.09 2.85 2.61 (565) (696) (634) 1.60 2.17 1.79

(302) (189) (193)

aNumber of utterances in parentheses

Figure 1. Level of Couple’s Compliance with Mediator Issue Requestsa

Level

1 .oo .90 .80 .70 .60 .50 .40 .30 .20 .10

Interaction Segment 1 2 3

#

#

a #

#

~~ ~ _____ ~

* = de.idlock trend ?# = agreement trend a = T h e higher the level, the more couples diverged from mediator requests.

data reveal that even though the agreement and deadlock mediators begaii talking about the same issues, deadlock mediators never pro- gress1.d to the level of the disputants or assisted them in talking about these relational problems.

Ti ible 3 provides the frequency distributions for issue statements by husb<inds, wives, and mediators in both the agreement reached and the deadlock conditions. Regarding husbands and wives, the table indicates that in the agreement condition, facts and interests are discussed, with relational issues third, and value issues last. In the deadlock condition, relational issues dominated, with factual issues second, interest issues third, and value issues last.

25

Table 3. Issue Type Frequencies by Outcome and Speaker

Issue Type Outcome Speaker Fact Interest Value Relational

Husband 549 526 21 388 (.37)a (.36) (.26)

Agree Wife 574 539 50 355 (.38) i.36) (.03) (.23)

~ 3 2 ) (.62) (.003) (.06) Mediator 398 778 5 80

aRow percentages in parentheses

The data pertaining to mediators reveal other interesting patterns. In the agreement condition, mediators focused twice as much on inter- ests as on facts, with very little discussion of values or relational issues. In the deadlock condition, the mediators split evenly between fact and interest directives, with little time spent on values or relational issues. Reading any of the deadlock transcripts reveals that couples often use factual disputes to disguise relational disputes. For example, consider the following husband-mediator extension of the wife’s relational com- ment presented above:

Husband: “You were not eating dinner. You never eat until seven.” Mediator: (to husband) “Is that six o’clock time in the current visita- tion order?”

In this sequence, the wife begins with a relational issue; the husband chooses to focus not on the relational issue of respect but on the factual .issue of when she eats, perhaps as an attempt to defend his actions. At this point, the mediator must decide which issue to address. Should the relational issue be processed at this time, or should the factual one be addressed? The mediator chooses the factual issue and ignores the rela- tional issue of respect. In fact, the mediator never addressed this issue even though the wife expressed this problem several times. No-agreement mediators often choose to process the factual disputes without digging deeper into the relational problems underlying these ostensibly factual disputes.

Discussion and Conclusions

Pcrhaps the most profound implication of these results is that the medi,iltors in this study spent very little effort processing relational issues for disputants, yet those issues appeared very important, particularly for the dcbadlocked disputants. Rather, they concentrated on facts and inter- ests. An uncharitable interpretation of this discrepancy is that the media- tors in this study approached most disputes in a consistently concrete fashi1.m by focusing on facts and interests. If disputants come to media- tion with a great deal of relational baggage and are driven to unpack it throughout the session, mediators are probably not in a position to help them. In fairness to the mediators, their high case loads often prevent them from taking the time to process relational issues, given that they have only an hour or so to work with couples. However, disputants may come to mediation with fairly consistent levels of relational problems, and agreement mediators may be using different strategies and tactics that overpower the significance of these issues.

T(I discriminate between these two interpretations, it might be useful to review the results of a study using this same data set but focusing on medi‘itor intervention strategies and tactics (Donohue, Allen, and Bur- rell, 1988). This study coded each mediator intervention according to three different strategies to facilitate disputant communication: struc- turini: the procedures for interaction, reframing disputant statements to identify important issues and proposals, and requesting disputant infor- maticin and commentary on proposals. In addition, each disputant utter- ance was coded according to its strategic value in developing disputants’ negotiation positions. Three strategies were coded: attacking the other’s position, bolstering one’s own position, and integrating with the other’s position. The goal was to identify which mediation interventions, in respoiise to which disputant negotiation strategies, appear to generate more cooperative interaction following the interventions.

Tlie results indicated that structuring tactics, in response to disputant bolsters and integrations, tended to yield more integration attempts, partic ularly for the agreement mediators. Preparing rules for interacting and tlien enforcing those rules evolves as an important centerpiece of the ailreement mediator’s structuring profile. In addition, more active attempts at reframing and requesting disputant information tended to yield significantly more disputant integration. What these data indicate is that more active mediator interventions that seek to take control of the mediation process, as opposed to allowing the disputants to take chargc., appear to generate more cooperative disputant interaction.

For example, in the exchange presented above, should the mediator have ignored the factual issue of pick-up time on the visitation order and processed the relational issue? What if the processing began by

27

asking the wife more information about the respect issue and then indi- cating that this was a legitimate issue that must be addressed at the appropriate time in the mediation? This approach acknowledges that the mediator is listening to the wife and respects an issue of great impor- tance to her. When the mediator has completed his or her information gathering about the case and is ready to process important issues, per- haps then the respect issue can be discussed more thoroughly.

Because the agreement mediators used significantly more active me- diation strategies and tactics while sustaining greater control in the me- diation sessions, we might argue that the emphasis on emotionall relational issues in no-agreement mediations was due, at least in part, to different mediator choices. By choosing not to take control of the interac- tion through more structuring and reframing tactics, deadlock mediators may have allowed disputants to dwell excessively on past relational dis- putes. However, we must note that most of the mediators in this study completed both an agreement and a deadlocked session and that most mediators experience about a 65 percent to 70 percent agreement rate. These observations suggest that mediators may become accustomed to using strategies and tactics suitable for moderately contentious couples. While these couples may allow mediators to use more structuring and reframing interventions, the highly contentious couples may simply ignore mediators’ directives and use the sessions to attack each other. However, conversations with several of these mediators indicate that their typical practice is to “let the couples go for a while to see how they interact.” Letting contentious couples “go” may create a runaway freight train that mediators are unable to stop with tools designed for slower- moving traffic.

References

Coser, L. The Functions of Social Conflict. New York: Free Press, 1956. Donohue, W. A., Allen, M., and Burrell, N. “Mediator Communicative Compe-

tence.” Communication Monographs, 1988, 55, 104-1 19. Guetzkow, H. “Unitizing and Categorizing Problems in Coding Qualitative

Data.” Journal of Clinical Psychology, 1950, 6, 47-58. Keough, C. M. “The Nature and Function of Argument in Organizational Bar-

gaining Research.” Southern Speech Communication Journal, 1987, 53, 1 - 17. McIsaac, H. “Toward a Classification of Child Custody Disputes: An Applica-

tion of Family Systems Theory.” In D. T. Saposnek (ed.), Applying Family Therapy Perspectives to Mediation. Mediation Quarterly, no. 14/15. San Fran- cisco, Jossey-Bass, 1986.

Putnam, L. L., and Geist, P. “Argument in Bargaining: An Analysis of the Reasoning Process.” Southern Sjxech Communication Journal, 1985, 50,

Putnam, L. L., and Wilson, S. “Argumentation and Bargaining Strategies as Discriminators of Integrative and Distributive Outcomes.” Paper presented at the first International Conference of the Conflict Management Group, George Mason University, Fairfax, Va., 1987.

225-245.

28

Putn;:im, L. L., Wilson, S. R., Waltman, M. S., and Turner, D. “The Evolution of Case Arguments in Teachers’ Bargaining.” Journal of the American Forensic Ass,rxiation, 1986, 23, 68-8 1.

Rololf, M. “Communication and Conflict.” In C. Berger and S. Chaffee (eds.), Handbook of Communication Science. Newbury Park, Calif.: Sage, 1987.

Rubin, J. Dynamics of Third Party Intervention. New York: Praeger, 1981. Schenkein, J. Studies in the Organization of Conversational Interaction. New York

Academic Press, 1978. Staffeld, W. “Mediation vs. Conciliation: A Model for Michigan’s Circuit

Courts.” Unpublished manuscript, 1987. Friend of the Court, Ingham County, Mich.

Wehr, P. Conflict Regulation. Boulder, Colo.: Westview Press, 1979. Zartman, I . W. The Negotiation Process: Theories and Aeplications. Newbury

Park, Calif.: Sage, 1978.

Williirm Donohue is associate professor of communication at Michrgan State University, East Lansing.

Judith Lyles and Randall Rogan are doctoral candidates in the same department.