Family Mediation – is it working for dads?

Barbara Relph*

Barbara Relph spoke to Nurit Zubery, a mediator and LLM student at the University of Auckland, about a thesis study she completed in 2021 on the experience of fathers in the mandatory family mediation process. Zubery spoke with 13 men about their experiences of the process.

Nurit Zubery believes that there is a problem with the way the family mediation system relates to men, and the misconception about how men ‘are’ in divorce. Zubery’s qualitative study at the University of Auckland Law School was supervised by Professor Mark Henaghan. The study comprised interviews with 13 men about their experience of the family mediation process to discover why and how the system was failing them and, just as importantly, why it mattered. She discovered four key experiences that negatively affected fathers’ view of the process.

1) Strong grief reaction

Zubery says that men experience a more severe grief reaction than women, partly because women initiate over 70% of separations. In the 1980s, when women started returning to work after having children, they rebelled against continuing to be responsible for household and family tasks, and traditional gender roles, resulting in a sharp increase in separation and divorce rates. This is now widely known as the “gender revolution”.

According to Zubery, statistics showed new phenomena for men arose as a direct result of divorce. Rates of psychiatric hospital admissions increased (nine times more likely than for women), involvement in motor accidents for men doubled in the six months following divorce, they are nearly five times more likely to commit suicide than women after divorce, and the rates of substance abuse and illness such as cancer, heart attacks and diabetes all increased for men. Primary contributing factors are the loneliness, despair and isolation experienced strongly by men.

According to Zubery, men find separation tougher than women, and many never recover. Her view is that this is largely down to how society has historically trained men – from childhood – to control their emotions and conform to a masculine gender norm where only powerful emotions are permitted to be expressed - anger, pride, and contempt.

Another factor Zubery thinks causes men to react more severely is that, unlike women, they lack a good support network. Even men with very good friends don’t tend to share emotional distress with them but rely on their partner for all emotional needs. This multiplies the loss for men in that they not only lose their relationship and the future aspirations associated with it, but any emotional support they had within the relationship vanishes.

...[M]any men never complete the full grief process to arrive at acceptance. Their grief is often expressed through anger or by bargaining with their former partner... through a long, drawn-out, legal process ...

As a result, many men never complete the full grief process to arrive at acceptance. Their grief is often expressed through anger or by bargaining with their former partner with the hope of repairing the relationship, or even through a long, drawn-out, legal process which can be symptomatic of an unwillingness to let go of the relationship.

2) Fatherhood has been devalued

The second key experience identified by Zubery is that fathers receive a subtle but strong message that they are not as important as mothers. This starts with the different message mothers receive that nothing bad will happen to the children if they are raised only by the mother.

There is strong evidence of the benefit for children in having two parents, and research shows that separation itself does not necessarily affect the outcome for children. Rather conflict between parents and the lack of a meaningful relationship with both parents does. “Meaningful” is involvement in everyday activities such as school pickups, sport, bedtime, mealtimes or at any time where there is an opportunity for emotional engagement.

Zubery says that, statistically, children raised with absentee fathers are more likely to be involved in youth crime (85% of youth in prison have an absent father), have poor academic performance (71% of high school dropouts have an absent father), experience homelessness (90% of runaway children have an absent father) and are more likely to be victims of abuse, have higher levels of depression, suicide, behavioural problems, substance abuse and teen pregnancy.

3) A belief that the system is biased

All men in Zubery’s study expressed some dissatisfaction with mediation processes, citing mediator or process bias against them. Family violence was one prevalent theme where men felt falsely accused of physical or psychological abuse by their former partners. They describe arriving at mediation, often soon after separation, angry and frustrated. They say that frequently the wife will cry, and the mediator will be protective of her. Everyone is upset, but the woman’s ability to express her emotions in that way is where it starts to go wrong for men and, says Zubery, they are immediately on the back foot often even before the mediation starts.

They believe this leads to them being judged as a “bad person” by the mediator, resulting in the mediation process being skewed in favour of the person expressing their emotions. Men attending family mediation then behave more aggressively through their belief that the system is not fair.

4) Powerlessness

The most prominent experience in the study was powerlessness, says Zubery. Every man interviewed believed they were powerless in the mediation – or court – process. Zubery suggests that part of this feeling may be due to the change in the balance of power in the relationship. During relationships, some men typically exercise dominating strategies against women. They lose much of this power following separation.

When put in a situation where they lack control, people are thrown into “non-control distress”, an uncomfortable feeling often resulting in desperate attempts to regain power and control. Men in that situation may react with heightened conflict with their former partner, instead of collaborating to achieve compromise.

So, what can be done? Implications for mediators

Zubery says that while this is undoubtedly an emotionally charged field of mediation, it is also one that has the transformative potential to change the quality of the relationship between parents, build trust and new communication channels, enabling long term co-parenting in the best interests of the children.

Zubery suggests that first and foremost, mediators must be aware of the fragile mental state with which fathers are likely to arrive at mediation, and of men’s tendency to express emotions through anger.

Mediators may need to consider whether they are being judgemental and whether they need to be supportive of a particular father to achieve better outcomes.

Mediators may need to set aside some unconscious bias, comments Zubery. She considers that mediators should use reflective practice, supervision, and peer support groups to identify their own reactions to gendered behaviours and unconscious bias.

Some of the men interviewed in the study described their issues as being overlooked in mediation in the interests of efficiency. This often resulted in entrenchment and refusal to reach agreement. Zubery says that exploring the past is hugely important in family mediation as it often enables insights into the behaviour of the other party and helps parties achieve closure. Being heard and understood engenders commitment to the process, enhancing the likelihood of resolution. The classic tools used in mediation such as active listening, reframing, empathising and finding common ground are invaluable.

According to Zubery, studies on family mediation found that a problem-solving style, rather than a settlementoriented style, achieved better outcomes. Problem solving style is characterised by asking many questions, identifying parties’ needs and eliciting their solutions. The use of reflection leads parties to less rejection of the other parent’s perspective and to more long-lasting outcomes.

Zubery says that other studies found that the use of private meetings between the mediator and each party increases the hopelessness felt by parties. Further, directing strategies such as enforcing behavioural guidelines and the mediator providing their own opinion led parties to feel the mediator does not respect them. The professional training of lawyers orients them towards a settlement-seeking rather than a relationship-building approach, but the relationship-building approach has proved to be more beneficial in family mediation.

Unlike litigation, mediation aims to rebuild trust between parents, teach new communication skills and establish a new, sustainable, co-parenting relationship while creating a sense of empowerment by finding the best solution for the children. These outcomes as well as the underlying values of mediation – respect for humans and their capacity to do good – were unfortunately not always present in the experiences of the study’s participants, according to Zubery.

The issue of family violence, which is prevalent within the population of high conflict separating couples, undoubtedly has an effect on the mediator’s perceptions and behaviours towards fathers. There is no doubt that victim safety must come first. However, it is possible that some of the anger and frustration of fathers can be avoided or reduced by mediators showing respect and recognition for fathers.

Zubery considers that improving family mediation must come with a sea change in our social and legal attitudes towards the family structure. Fathers have been proven capable of being good parents, yet the lack of recognition for their abilities too often creates a self-fulfilling prophecy and results in fathers who do not fulfil their potential. Zubery notes, “The legal community has the power to nurture such change and shift the social and legal discourse. Acknowledging that the welfare of children depends on reducing and healing conflict between parents, and that changing the attitude towards fathers to reduce the level of anger and frustration experienced by many fathers, will be a first step in the right direction.”

Zubery acknowledges that this study may have its own bias towards men who are unhappy with the family mediation process since they self-selected for involvement. This does not, however, imply the findings are invalid, rather if one father is dissatisfied, many others will be too.

* Nurit Zubery is a family mediator, practicing in Auckland, focussing on collaboratively facilitating parents to resolve their differences for the benefit of the family - www.beyondconflict.co.nz. Barbara Relph is a professional writer, editor and proofreader – www.barbararelph.com.