Family Mediation: Contemporary Issues


Edited by: Howard H. Irving & Michael Benjamin

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  • Chapters
  • Front Matter
  • Back Matter
  • Subject Index
  • Part I: Background

    Part II: Clinical Practice

    Part III: Child Custody

    Part IV: Special Topics

    Part V: Closing Thoughts

  • Copyright

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    Twenty years ago, in several California courts and in the law offices of a Georgia lawyer who had undergone a very difficult divorce, the process of family mediation began. The California experiment was limited to custody and visitation issues, but O. J. Coogler's structured mediation applied to all issues.

    It was in that context I first met Howard Irving, who visited our Los Angeles court in 1977 to see what we were doing. We did not have the advantage of any text. Indeed, we were flying by the seat of our pants. Yet the logic of parents resolving their own dispute over children and the importance of having both parents involved were obvious to us, if not to others. In fact, the philosophy of the day was more the one depicted in Saul Bellow's Herzog, in which father leaves the home, mother remarries, and the new stepfather takes over. The prevailing philosophy was contained in the Solnit, Goldstein, and Freud text Beyond the Best Interest of the Child, well named as it was.

    The idea was that divorce was a reorganization of the family, not an end of the family. The concept of not being “divorced from” someone but being “divorced to” them was just being conceived. The idea parents might cooperate and the child could have two homes—Isa Ricci's Mom's House; Dad's House—was just being written. Ciji Ware was just beginning the personal journey that would lead to Parents Sharing Custody and the journey to produce such a wonderful and gifted son, who had the benefit of four loving adults.

    An old African saying is, “It takes a village to raise a child.” We were in the process of creating modern micro-villages, and Howard Irving was one of the first witnesses of this revolutionary process.

    What we were witnessing was the birth of a new family system. This system was not better or worse than the old family system, the nuclear family, a relatively recent and perhaps transient family system. The nuclear family is a child of the Industrial Revolution. This new family system, labeled by Connie Ahrons as “the binuclear family” is a product of the postindustrial revolution and has emerged as a response to deep movements in the tectonic plates of our culture. Paradoxically, this new family system more closely resembles the old extended family.

    Yet the labels and the processes to support this system had not been invented. Mediation and the notion of cooperative parenting were just beginning to emerge. That divorce occurs in the spousal role—not in the parental role—began to be recognized and honored.

    In Los Angeles, we turned to a labor-negotiation model, recognizing the concepts from marital therapy did not apply. We were to help the parties reach their own solution and separate the parental issues from the spousal ones. We recognized the need to focus on underlying issues and needs—to focus on “what was wrong,” not “who was wrong.” We identified the need to find solutions benefiting all and to process differences like any policy decision through the testing of all possible options. We also recognized the difference between relationship issues in which there is not principle of “right or wrong” but rather the defining of roles to continue into the future. We recognized property and support were different from relationship concerns. Here principles of equity and fairness did apply: One does not divide a business or resell a house. Here the role of the attorney was paramount in representing the adverse interests of the parties. We recognized attorneys were critical in the successful use of the mediation process and began the slow evolution in the development of family law in which attorneys became more supportive of the mediation process and began to drop the adversarial trappings of their role while continuing to represent their client s' adverse interests.

    Ury and Fisher published Getting to Yes from the Harvard Negotiation project and the witnessing of the forging of the Camp David Accord. In this text we witnessed the common thread between the disputes we were resolving and the resolution of large-scale international disputes. Robert Mnookin's seminal article from the April 1979 Yale Law Journal, “Bargaining in the Shadow of the Law: The Case of Divorce in the Courts,” burst on the scene with blinding clarity. We felt like the prisoner in the Dostoyevsky's Notes from the Underground; here was someone who understood the importance of the parties bargaining in the shadow of the law tapping on our prison wall.

    And so reading Professors Irving and Benjamin's book takes us back along this 20-year journey to the beginning of our work. This text captures the scope of the evolutionary process of family mediation and provides a scaffolding for those who will carry on the important work of reforming the way we help families transit the process of divorce through the insight and perspective of 20 years. We commend this book to you, the reader, and wish we might have had it when we began.

    Although we did not write this book, we certainly have lived it.

    HughMcIsaac, Manzanita, Oregon


    This book was undertaken to build on and reflect the changes of our earlier work in family mediation. Much is owed to the late Meyer Elkin, who was inspirational in the writing of this book. We also owe a debt to Hugh McIsaac, whose work in dispute resolution contributed to many of our ideas for this book.

    Our colleagues at the University of Toronto Faculty of Social Work have been most helpful in sharing their insights, which I have tried to incorporate in this book. They include Ben Schlesinger, Heather Munroe-Blum, Nico Trocm´, and Duncan Lindsey, to mention a few.

    A special thank to the teaching group of the Family Mediation Course, including Risa Eisen, Deborah Mecklinger, Sharon Bar David, and Phil Epstein.

    Much is owed to our colleagues in Hong Kong and Israel who have given us a deeper appreciation of the true value of diversity in mediation.

    The chapter on child protection mediation (Chapter 9) was written by Allan Barsky (Faculty of Social Work, University of Calgary), who has made an invaluable contribution to our work. Lilianne Davis shared with us her material on an interesting case situation. We are most grateful to her.

    We are grateful to our editor, Jim Nageotte, for his belief in the book and ongoing encouragement. We want to extend our further gratitude to Gillian Dickens, our Production Editor, who guided the manuscript through to publication.

    We would like to thank the many families who have given us so much of themselves and the students who have been involved in our research. We have learned a great deal from all of them.

    Finally, this book is dedicated to the memory of the late Sylvia Irving. She lives and practiced mediation in her daily life, knowing the real value of caring and understanding. We hope this book does justice to her ideals.

  • About the Authors

    Howard H. Irving, PhD, is a Professor in the Faculty of Social Work and is cross-appointed to the Faculty of Law, University of Toronto. He is Codirector of the Combined Law and Social Work Degree Program. Dr. Irving is a past president of Family Mediation Canada and was a board member of the American Association of Family and Conciliation Courts. He is the author of several articles and books on family mediation and has taught mediation courses in Canada, the United States, Israel, and Hong Kong. He is in active mediation practice in Toronto and has been the principal investigator in several research projects.

    Michael Benjamin, PhD, is a family and educational sociologist and is currently Research Coordinator of the Student-Environment Study Group at the University of Guelph, Guelph, Ontario. His areas of interest include family mediation and higher education, about which he has published widely, including (with Howard Irving) Family Mediation: Theory and Practice of Dispute Resolution (Carswell, 1987). Other areas in which he has published include family therapy, family violence, and prostitution.

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