Thoughts on Mediation with Same Sex Couples

April 25, 2016 2 comments

This is an article previously published in ACResolution Magazine, Winter 2009

“Mediation with Same Sex Couples – It’s Not Straight Forward”  By Kathy Elton
A couple of years ago, my partner and I spent the weekend with a male friend who happens to be a mediator. His wife was unable to join us, so it was just the three of us. One night we stayed up late and somehow my partner and I ended up telling him the details of each of our past relationships. Winding Road
The next morning our friend brought up the discus-sion and asked if we were OK. The question was unexpected because there was no reason, in our minds, not to be OK. He went on to share that the topic of our past relationships and the way in which we talked about those relationships in front of one another had made him uncomfortable. He said that if he or his wife were to discuss a past relationship in front of the other, it would create negative tension between them. He could not imagine that we did not react in a similar way.

That experience has stayed with me and when I came across research that outlined the similarities and differences between same-sex and cross-sex couples I was intrigued. In this article, I will review some of the research on same-sex couples in conflict and make suggestions for mediators based on my own experience that reinforces the research.

Limited research
When you think about same-sex relationships what comes to your mind? Some of the common myths about same-sex relationships are:
· Homosexuals are unhappy individuals who are unsuccessful in developing enduring
· Gay and lesbian relationships are inferior to cross-sex relationships;
· Gay and lesbian relationships are less satisfying than cross- sex relationships, more prone to
discord, and people in gay and lesbian relationships are “less in love”;
· Homosexuals arc socially isolated and lacking in social sup­port.
The research on same-sex relationships is sparse, but those studies that have looked at these relationships have found that same-sex couples are comparable to cross-sex couples on measures of relationship satisfaction and quality. A 1987 study by L.A. Kurdek and J. P. Schmitt tided “Partner Homogamy in Married, Heterosexual Cohabiting, Gay, and Lesbian Couples” published in the Journal ofSew Research found that same-sex and cross-sex couples who are matched on age and other relevant characteristics do not usually differ in levels of love and satisfaction. Kurdek and Schmitt’s studies on this topic are all based on self-report questionnaires. The bottom line is: Same-sex couples are not any more prone to relationship dis­satisfaction and difficulties than are cross-sex couples.
So, how do same-sex and cross-sex relationships differ?
Some of the most recent research (2003) on same-sex relation­ships was conducted by Dr. John Gottman of the University of Washington and Dr. Robert Levenson of the University of California at Berkeley. In a 12 year study, they evaluated 42 same-sex couples (21 gay and 21 lesbian) all of whom were cohabitating and in a committed relationship of at least two years. These couples were compared to 42 cross-sex couples who had been married for at least two years and whose reports of satisfaction in the relationship were roughly equivalent to the same-sex couples. In a 2001 article in the Los Angeles Times, reporter Kathleen Kelleher summarized the then unpublished results of the Gortman/Levenson study:
· 20 percent of same-sex couples had broken up at the end of the 12 years, compared to 38
percent of the heterosexual couples.
· Same-sex couples use fewer controlling, hostile emotional tactics during arguments.
According to Gottman, generally, power-sharing and fairness are more prevalent among
same- sex couples than among cross-sex couples.
· In a fight, same-sex couples take negative statements less per­sonally than do cross-sex
couples. “A gay or lesbian person can say something negative in a fight and a partner is much
less likely to be defensive than those in a cross-sex partner­ship,” Gottman said.
· Unhappy same-sex couples are better able to cairn down while in a fight than cross-sex
couples. For some reason, cross-sex couples become more physically agitated during a fight
than same-sex couples. The upshot, Gottman said, “is same-sex couples appear better able to
soothe each other during conflicts or in the aftermath of a fight.”
· In a fight, lesbians show more anger, humor, excitement and interest than conflicting gay men.
Gottman speculates that this may be the result of two women in a relationship who have been
raised in a society where emoting is more accept­able for women than men.
· Gay men need to be especially careful to avoid negativity in conflict. If the initiator of conflict in
a gay relationship becomes too negative, his partner may not able to de-escalate the conflict as
well as lesbian or cross-sex couples.

Given the research, mediators working with same-sex couples should consider the following:

Understand your own comfort level with high emotion

I believe that all mediators should be aware of their own com­fort level in regard to conflict so they do not intervene because of their own discomfort. We, as mediators, should only inter­vene when the conversation becomes unproductive.

When working with lesbians, mediators may experience a higher level of emotion than they experience when working with gay men or cross-sex couples. My partner and I tend to express our emotions with each other in front of our family members on a regular basis. At times when we are having a disagreement with one another and I feel like we are just getting into a good discussion, a family member (often my father or my partner’s mother) will say something that is meant to calm us. During those moments, we do nor need to be calmed down and, in fact, we are both feeling very engaged and connected to one another. However, the level of emotion we are willing to express makes others uncomfortable. Is the discomfort others experience just a generic response to any emotionally laden situation? It could be, but I think it has to do with both of us being women. I also think it can be related to Gottman’s speculation that it is more accepted in society for women to emote. With a lesbian couple you get double the emotion. In the family context I do not mind being “shut down” because of someone’s discomfort with the level of emo­tion, but if I were a participant in a mediation talking about something important and a mediator intervened, it would frustrate me. Mediators need to be aware of the possibility of this higher level of emotion and should be prepared to allow the lesbian couple to engage in a way that is comfortable to them. Mediators need to be careful not to intervene because of their own discomfort when working with lesbian couples; the last thing you want to do is to shut them down, because that may increase their level of stress and frustration and derail the mediation process.

Conversely, when working with gay men, a mediator needs to be sensitive to the level of negativity exchanged between the parties. If the level of negativity becomes too high, the relationship can be further damaged. 1 still advocate for keeping my gay clients in the same room and using caucus sparingly. In instances where I would likely not intervene
with cross-sex or lesbian couples, I may intervene with gay couples, just to make sure the relationship is not negatively impacted while the couple is in the mediation process. In instances when I do intervene, I usually reveal my rationale to the parties so they do not assume I am being too controlling of the process. Once they understand the reason for the intervention, they often self-regulate or, at least, understand why I am breaking in.

The use of caucus

The use of caucusing should be limited when working with gay and lesbian couples. If you are a mediator who uses caucuses as a regular part of your mediation process, you may want to re-think this approach when working with same-sex couples. The Gottman/Levenson research basically concluded that gays and lesbians display less belligerency, domination and fear with each other than cross-sex couples. The research also found that gays and lesbians who exhibit more tension during disagreements are actually more satisfied with their relation­ships than those who remain unruffled. When working with cross-sex couples, we as mediators know that the higher the level of tension, the more trouble the relationship is in, so we may instinctively separate the parties. This can be counter­productive when working with a same-sex couple, unless the caucus is held to lessen the damage between two men.

Respect the parties and the relationship

Finally, and most importantly, as a mediator you must respect the parties and the quality of their relationship. I recommend that mediators who believe in the old myths about gay and les­bian relationships decline such cases, instead referring the cases to a mediator who understands and uses the unique techniques associated with mediating gay and lesbian relationships. In
any type of conflict, gay and lesbian clients need and deserve the same support and respect from the mediator that would automatically be afforded a cross-sex couple.

Making the Case for Using a Court Qualified Mediator

April 17, 2016 1 comment

Are you looking for mediator or has your attorney set up a mediation with a mediator?  Should you care if this mediator is Qualified by the Court?

I believe there are many reasons you should consider hiring a mediator who has been qualified by the court to provide mediation services, here are a few:

You can be sure they have specific training in mediation skills.

They are held to an Ethical Code for mediators.

You can be assured they have recent training and experience conducting mediation.

They are part of the mediation community and are giving back to the community by providing pro bono work each year.

Let’s look at each of these reasons in more depth:

To be included on the Utah State Court Roster of Qualified Mediators, a provider must meet specific training and experience standards Utah State Court Mediator Qualifications
In truth the standards are not extremely high, but they have been set as a minimum standard for those being qualified by the court to mediate. There are many mediators in the community who have not completed the required training and are therefore not included on the roster. Some of these providers are experienced attorneys, therapists or retired judges or commissioners. The questions is, why should someone who has experience in another field be required to complete training in mediation? The answer is simple….. Mediation is Mediation, it is not acting as an advocate, therapist or judge and the skills used in those professions are often antithetical to the skills used by a mediator.

In most training programs for mediators, those being trained are encouraged to refrain from inserting their opinions or ideas into the disputes in which they are serving as mediator. For those who have spent their careers doing the opposite, training and practice is needed to develop new skills. With training, mediators are exposed to new skills and ways to facilitate negotiation and they practice these new skills in the training program as well as when getting the required experience to qualify for the court roster. Without this training and experience, many of those who practice mediation and have never been trained as a mediator are a “one trick pony.” I was recently talking with a local family law attorney who has attended mediation with me and with a mediator who is not qualified on the court roster (this person was a retired judicial officer). The family law attorney expressed to me that the other mediator only had one intervention to try to get parties to settle and that was to tell them what they believed would happen in court and scare them into settlement. In comparison, a mediator who has training has many different interventions they are taught to try to get parties to settle, non of which are to tell the parties what to do. Mediation is a process which is built on party self-determination, when parties are scared by a possible outcome in court, their self-determination is taken away and fear of the unknown takes over.

Ethical Code

One of the requirements to be qualified as a mediator in Utah is to take and pass an exam on the Ethical Code for mediators Ethical Code for Mediators in Utah. In addition, mediators on the Utah court roster are putting themselves under the scrutiny of the Court ADR Director to ensure they follow the Ethical Code. Why in the world would you want to work with someone who is not willing to follow their professions Ethical Code and be held to those standards? As a mediator, I have heard horror stories about things a non-court roster mediator has done, and there is no action that can be taken to help correct as issue if it arises in your case. Basically, if you work with a mediator who is not on the court roster, you run the risk of having no recourse if they act unethically (other than to pursue something civilly). If a mediator who is on the court roster has Public or Private sanctions imposed for ethical violations, those must be made public and are noted on the Utah State Court Roster; Public Sanctions  Private Sanctions. Mediators not on the roster can hide behind any breach of the ethical code and by doing this may continue to engage in unethical behavior with no recourse or public notice. By working with a mediator on the court roster, you can be assured they are familiar with the ethical code and if they breach it, will be held accountable for this and not be allowed to continue this behavior unchecked.

Up to Date With the Field

For a mediator to re-qualify for the Utah State Court Roster each year they must complete a minimum of 6 hours of training in the field of mediation or conflict resolution. The field of mediation is in it’s beginning stages and new findings and ideas come out every year. The Court requires that mediators complete a minimum of 6 hours of continuing education each year; this helps ensure that mediators stay current in the field and encourages them to learn and develop new skills.
When you choose a mediator who is not on the Court Roster, you run the risk of working with some one who is behind the times. There is so much research coming out regarding neuroscience, how the brain works and how people make decisions. Mediators should keep up on these new findings so they can grow along with the field instead of staying stuck in the past.

Giving Back to the Community

Mediators who are on the court roster are required to document a minimum of 3 pro bono ( done for the public good without compensation) cases each year. This requires mediators to not only make a living in the community but give back to the community as well. Ask mediators you are considering hiring if they do volunteer work as a mediator, are they giving back to the community or just taking?

So, the choice is yours. Do you want to work with a mediator who meets the Utah State Court requirements to qualify as a mediator?   Or are you OK working with someone who is calling themselves a “mediator” because it is a popular term and yet they have no training or skills?