This interview was conducted by Faria Marlatt, who is an associate at Martha McCarthy and Company LLP. It was originally published in Volume 31 Release 6 of the Ontario Family Law Reporter © LexisNexis Canada Inc.
Brook Thorndycraft is an accredited Family Mediator, Coach, and Conflict Resolution Trainer. She has extensive experience working with non-traditional and LGBTQ families. Her practice focuses specifically on family law disputes and includes conflict coaching. Ms. Thorndycraft spoke with Faria Marlatt about her practice and some of the unique challenges and factors to consider when mediating family law disputes with people involved in nontraditional family structures.
Q: You’ve described your approach to mediation as facilitative. What is the facilitative approach, and how does it differ from the evaluative approach that many family mediators use?
A: Both styles of mediation can be very helpful. Facilitative mediation it is not as directive as evaluative mediation can be. There is not necessarily expert opinion given. There is not necessarily direction given. It is more about allowing the parties in the mediation to determine for themselves what would work best for their particular family. The parties are the ones who know their family the best, so my role as a facilitative mediator would be to support them to be creative, come up with different ideas, explore different options and try to come up with a solution that is really in their family’s best interest and fits their family in terms of their particular microculture, their way of being in the world, and their community. It is my preference, if possible, to start with a facilitative approach. I feel that when individuals have the opportunity to think about the issues for themselves, there is a certain amount of capacity building and power that comes with developing your own solution to your problem. It can also lead to a longer lasting solution in the sense that people feel ownership over a decision when they’ve been active participants in making it. But, I think for some people it just does not work. Either they’re not in a space where they’re particularly able to think creatively about things, or they’re really at odds with each other and need someone external to come in and give a bit more of a push. There are also some people who just want an expert to make a decision for them, so they don’t have to think about it. That’s fair, too. But my instinct would be to start with a facilitative mediation to see if people can manage it, and if they can’t and are mediating without lawyers present, I would bring lawyers in, so they are at least getting some advice through the process. If they’re still not able to make their own decisions, then an evaluative process might make sense.
There is a spectrum of processes in dispute resolution in terms of the autonomy and ownership a person can take over their issues. Facilitative mediation falls at one end of the spectrum. Arbitration is at the opposite end. There are benefits and drawbacks to people relying more on someone who has experience and a lot of knowledge about what people do in separations or how they deal with parenting issues, and different people fall in different places in terms of what feels comfortable for them and what feels like work to them.
Q: How would you define a successful mediation?
A: I feel like that is a very difficult question in the family context. Obviously, it’s great when a deal can be made, although I’m also aware that sometimes deals get made and then fall apart if the relationship issues are too big. There is a range of what can be considered a successful mediation. People can take a very long time to get to a point where they feel settled and able to co-parent and not be stuck in a conflict around it. A successful mediation can be anything from a full deal being reached to people feeling like they’ve been able to air a few of the issues they had or that they’ve come to a greater understanding with the other side, even if an agreement isn’t signed at that point. A successful mediation may be just planting a seed. For example, where parties leave mediation, preferring to go to court and end up back at mediation after the court process didn’t go the way they’d hoped. Planting that seed so they have the option to come back to mediation when they are ready can be a successful mediation.
Q: Switching topics a bit to virtual mediation — as one of the services you offer, can you tell us what this looks like?
A: I prefer to be in the same room as people when possible. I just find in-person mediation is often better because it allows the mediator and the parties to build a rapport and allows the parties to see each other and interact in a more direct way. I do virtual mediation, however, in a couple of different situations: either if the parties really shouldn’t be in a same room and where a virtual mediation would be potentially more effective than a shuttle mediation; or if one person just can’t physically be there. For example, where one of the parties lives in a different province and we have to use technology to be able to facilitate the mediation. I think where there are mobility issues or mental health issues, virtual mediation can be effective. It is also helpful where an individual is facing time constraints that make it hard for him or her to come into the office. Another situation where virtual mediation is helpful is in situations which don’t require a shuttle mediation — where it would actually be helpful for them to communicate directly as opposed to through me, but where there are either safety concerns or the parties don’t want to be in the same room or physically close to the other person. In terms of substantive issues, however, generally when there is not some process issue that is requiring virtual mediation, I would prefer in-person mediations.
Q: Do you find that virtual mediation can be similarly effective, or you use it in as a last resort where it is required by the circumstances?
A: No, I think it can be similarly effective, but it just requires different skills from the mediator because you are not getting as much body language or non-verbal signals because you’re not in the same room. It requires a different level of attention. I’ve had successful mediations through this technology. I’ve actually had situations where people were in the same room for a long mediation and used a virtual mediation for the next session and it went better virtually because they weren’t as emotionally triggered by each other. Having that screen between them and having the physical distance between the parties can be helpful for them to stay emotionally grounded.
Mediation with Non-Traditional Families
Q: Your work with non-traditional families includes polyamorous families and families with multiple caregivers. Do you find that these kinds of non-traditional family structures pose unique challenges for mediators?
A: I think that as soon as you include more people in any process it becomes more complicated. You have more personalities, more reactions, more expectations, interests, and so on. Confidentiality can be tricky too because you have more people who have to agree not to talk about the issues in between the sessions. There is also the added challenge of alliances, where two of the parties, for example, team up and the third party is on the out. This alliance can take place at the mediation or between sessions. There are a lot of unique challenges in terms of process and managing the people that are present. Where you have families that involve more than two potential decision-makers, there can be significant substantive challenges because you have at least three people wanting some sort of decision-making around parenting issues and some sort of access or parenting time with the child. This becomes logistically more challenging. Instead of two houses, are you talking about multiple houses? It takes a certain amount of creativity.
Q: You mentioned the difficulty that arises where there are alliances between the different stakeholders. What do you do when faced with an alliance?
A: Sometimes it might be possible to have a conversation about it with the people involved and refocus the mediation around the goals they’re trying to achieve, explaining how this alliance might get in the way of achieving that. This assumes the parties have some common goals around coming to a resolution. This might also be a time where it’s helpful to have all of the individuals in separate rooms and do a lot of caucusing. There is also a danger that the “alliance” is not actually an alliance. Sometimes it might seem like two people are allies, but in fact one person is pushing that position or that alliance. This is why it’s particularly important to really talk to the parties separately to check in and find out where they’re at individually. It’s also important to identify and not facilitate this alliance. I meet with everyone individually even if they want to meet together. If there’s one person on the outside, it’s important to ensure they have some kind of support, whether their support person is present, or simply available by phone during a break. In these types of situations, I also advise that the parties get legal advice before they come to the mediation. Where the situation involves multiple parents, I advise the parties to seek legal advice with someone more familiar with non-traditional family structures.
Q: How do different power dynamics come into play in those situations where there are nontraditional families or more than two caregivers?
A: The traditional power dynamics can still be present, while also adding additional challenges or pressures. For example, most situations have a maximum of two parents that are biologically connected to the child. That creates its own power dynamic because even if, legally speaking, parenting is based on the party being in the role of a parent, there is a lot of fear around whether that’s true. There are also perceptions of who is the real parent is and who is not a real parent. It’s important to be cognisant of these potential triggers. In more traditional relationships, there may be tensions where one parent has historically been more active and the other less involved. This can be true in families with multiple parents as well, but may become exacerbated with the combination of fears surrounding who’s the primary parent. Another issue that can often arise is the intention to parent. In situations where there are known donors, it may not always have been the intention for the donor to be considered a custodial parent. The parties may have originally thought the donor would be a caregiver, or a regular person in the child’s life, but not an equal parent. Where the parents have differing views of the original intentions, there can be serious questions that arise, including what the future role of the parties will be, or what sort of access time they will have.
Q: What factors need to be considered in coming up with parenting plans in situations where there are more than two caregivers?
A: That’s a very good question. I’d say the big consideration is how you maintain a meaningful relationship with everyone who is important to the children. This could potentially include an extended family as well. If the children have three parents there might be three sets of grandparents, aunts and uncles from three different families and so on. You need to consider how to maintain meaningful relationships with all of these important people while at the same time not requiring the children to live constantly out of a suitcase, and not expecting to have more transitions than the child is able to deal with. You can look at the adults involved and how well they can get along to explore whether it’s possible for them to be able to spend time together as parents. It’s also worthwhile to consider how close the individuals will be living to one another and what this means in terms of school or daycare locations. The more people you have involved, the more important it is to try figure out how to minimize conflict, because all the issues that arise between two parents are multiplied when there are multiple caregivers.
Q: One of the services you offer to help prepare individuals for mediation is “pre-mediation coaching”. Can you tell us a bit about what this looks like?
A: I do pre-mediation coaching with an individual who will be going through mediation and might need some help to prepare. It’s not legal help or legal advice, nor is it therapeutic work that someone may need. It’s very strategic and goal-oriented. The individual sets out what they would like to achieve in mediation and what obstacles they foresee in achieving that objective. We then develop a strategy to help achieve that goal. There are a range of people who seek out these services. These services can be suitable for someone who feels their ex is more adversarial or aggressive than he or she is; or someone who feels their anger will get in the way of a settlement; or someone who feels they are too passive in the negotiating process.
Q: Do you provide this sort of coaching where you also act as mediator?
A: I can provide pre-mediation coaching where both parties consent. As a mediator, I need to maintain neutrality, so if both people want to have pre-coaching sessions going into mediation, I can provide that service. It’s also possible to do a joint coaching session before mediation, though it’s usually separate. Joint sessions focus on the clients coming up with shared values and identifying how to support those values. If one party approaches me for pre-mediation coaching and the other is not interested, I would generally refer that person to a different coach.
Q: What sort of exercises you do with the parties during these sessions?
A: There is range of exercises available. We can identify a personal circle of support; or if the individual is dealing with other personal issues that get in the way of their ability to be mentally or emotionally present at the mediation, we can develop solutions to those issues to help build their capacity to be present in mediation. Much of the coaching centres around emotion regulation to equip the individual with strategies to appropriately address triggers that make them angry, or cause them to disengage. Together, we explore the behaviour and strategies that have been helpful in the past to minimize the reactivity to it. We practice mindfulness and physical movements to help the individual stay grounded. I can also work with the individual to raise issues or concerns they have in a productive way. We can participate in role plays to run through the situation from different angles. I can also review and suggest edits to their correspondence to the other party. I recommend the individual send a response in accordance with “BIFF” principles [brief, informative, friendly, and firm] (Bill Eddy for the High Conflict Institute). It’s important that their correspondence sends the intended message without any necessary venting or hostility. I’ll review the correspondence with the individual, line-by-line, to assist the individual in reflecting on the kinds of messages they’re sending, and how to improve their correspondence going forward. I also do a lot of work to assist the individual to see the dispute from the other party’s perspective. In this way, the individual may be better equipped to present solutions that are mutually agreeable.
Q: Do you find there’s a self-selection that occurs? Are the individuals that obtain these coaching services already willing to be self reflective?
A: Not always. Generally, I’d say that can be true, but often individuals might want to be able to reflect and be as productive as possible, but don’t necessarily have the capacity to do that. Sometimes the exercises require them to do more work than they were expecting or willing to do and that can be hard for them. It’s interesting because it is possible to do this work with pretty high conflict situations.
Q: How many sessions are usually involved in pre-mediation coaching?
A: It can be only one session, or as many as ten. It depends since the mediation itself can stretch over a long period of time. Sometimes people will come once before their first session and then a couple of times between sessions.
Q: And what would you say is the goal of coaching sessions?
A: I think it’s simple: the overarching goal is for people to be more prepared and to make the process easier for everyone involved, including the lawyers. It helps the parties come to an agreement. Each individual also comes in with their own goals. Sometimes it’s my role to challenge these goals if they’re too positional, where they are looking to take everything. There needs to be a bit of a reality check and otherwise mediation may not be the right process.
Q: When you do these coaching sessions with the parties, do you find it informs the way in which you approach the subsequent mediation? How does it change the way you approach the mediation, if at all?
A: The joint coaching sessions are a kind of extension of the intake, in the sense that it is an information gathering tool. Often during the intake I’ll do some coaching as well. I’ll assist the parties to move past their BATNA [best alternative to a negotiated agreement], and work through their options. So, I wouldn’t say the coaching session changes the way I approach the mediation because I feel I don’t necessarily get more information out of the parties than I do in a very in-depth intake. The purpose of the coaching session is different. The intake is about getting information; the coaching session is about helping the parties deal with some of the issues that they’re struggling with. In one sense, the coaching session can provide me with some additional insight to assess what the parties are bringing into the room, and what is going to be challenging for them in particular.
Q: In terms of Conflict Coaching, what are some of the situations in which clients ask for this service?
A: I’ve had people come to me with a mediated agreement and could benefit from a parenting co-ordinator, but where the other party isn’t willing or can’t afford a parenting coordinator. Sometimes, I work with people around managing ongoing high-conflict situations. Through this service I can help individuals with the realization that they’re not going to be able to change the other person, and offer strategies to potentially shift the current dynamics. In those situations, I might end up providing more resources or information than I do in other kinds of conflict coaching situations where these individuals are at a loss in terms of next steps. I talk to people about how to respond to scheduling issues or feelings that their children are being turned against them. I help build a strategy around that. These are certainly situations where I do a lot of correspondence review and editing. As much as possible, I try to get the individual to do the actual editing themselves so they’re not relying on me to continue to write their emails for them. For example, we can engage in a reflective exercise to assist the individual to consider how the other party will respond to a certain sentence. Many of these exercises help the individual recognize their own role, and how they react to their own buttons being pushed. It assists the individual to respond in ways that might defuse the conflict, rather than contribute to it. I also provide conflict coaching in situations outside family law. I’ve assisted in situations of sibling conflict or work conflicts where people are struggling with specific relationships in their life and would like to develop a strategy to deal with it differently.
Q: How do you approach relationship improvement coaching?
A: It’s the same service as conflict coaching, but it recognizes that some people don’t identify with the idea of a conflict. These services are for individuals with relationships in their lives that they’d like to work on. These sessions are mostly one-on-one and not joint. I do not offer joint sessions for couples. I refer those individuals to couples’ counselling.
Q: What advice would you give to family lawyers? How can we help our clients to get through a conflict in a way that’s productive?
A: I think it’s important to get at the human element that’s going on under the surface and under the legal issues, though I’m not sure that’s the role of family lawyers. This is why collaboration between different kinds of professionals is important. In the same way that I wouldn’t give legal advice, it’s not really the role of lawyers to provide that kind of support. I think the more family lawyers can help clients identify what they are really hoping to achieve through this process, pushing aside any anger or grief, the better. In parenting issues, it’s about bringing the discussion back to what the child needs from the party to be able to grow up happy and healthy, and to be able to look back on a positive childhood. Lawyers can assist their clients coming back to this fundamental principle so that the clients can stay grounded in their long-term goals, as oppose to getting caught up in the “fight”.
Q: You facilitate agreements for parents who are planning to conceive through assisted reproduction. What are some important considerations that you keep in mind when negotiating donor contracts and agreements regarding the future child’s relationship with each adult involved in assisted reproduction?
A: The most important things for me to keep in mind are, “what is the relationship that the parties are actually trying to have”, and how do I help them identify that logistically? For example, if this is a situation with a known donor as opposed to a parent, what is this person going to be called; how is the child going to understand who the donor is; what is the donor’s role in the child’s life going to be; are they going to be involved in child care; and if so, in what ways; is their extended family going to be involved, and if so, what does that look like? These questions have always been important and with the All Families Are Equal Act, it becomes even more important so that people are actually creating the kinds of agreements that will allow them to create the families that they want to create. People need to know ahead of time if they are making a known donor agreement, or if they are making a co-parenting agreement and how they are going to determine what their family arrangement will look like and what the relationships are.
A: Things have changed with All Families are Equal Act, and while I cannot advise on the legal implications of the new legislation, I would say that the clearer the agreement, the better. The more the parties can lay out the expectations for everyone, the roles everyone will play, whether this is a known donor situation or a co-parenting agreement, the better. The next recommendation is that the more you can live by that agreement and follow that agreement, the better. It’s not only about writing the agreement, but also following that agreement. It’s also very important that people talk about their parenting choices and what is important to them in terms of parenting. This applies to everyone, including a donor who is not technically going to be a parent. The parties to the agreement need to be sure there is compatibility beyond their DNA. The donor should be on board with the parenting philosophy of people he or she is donating to. If there is a disconnect in terms of the parenting philosophy, the donor should consider not donating or at least think about what that relationship will look like.
Q: What would you say about the essential components of an effective, child-focused known donor contact?
A: Clarity, specifically about the role of each person in the child’s life, who is making decisions, what happens in cases of disagreement, how and when a child is going to be introduced to the whole notion of who this person is.
The Positive Potential of Conflict
Q: Going back to the philosophy of conflict, on your website, you write that “[c]onflict can be very destructive, but it also has tremendous potential for creativity and social change”.
A: Conflict, and particularly life-changing conflict, really forces us to re-assess what’s going on. It’s an opportunity, but I don’t want to minimize the damage of it. It’s rare that I’ve seen people using their "generative selves" (Laura Atwood,PCC, BCC, ACPC, Professional Conflict Coach and President of Adler Learning USA) in the context of family conflict because there’s so much pain, feelings of betrayal, fear, and guilt, that it makes it extremely hard for people to take that opportunity to be proactive about creating something new. But that opportunity is there, it’s just that sometimes there’s only a small capacity to grasp it. There might be few moments for someone to recognize there’s an opportunity. The greater opportunity might come a few years later when they are able to reflect, having moved past the pain, to fully take advantage of that opportunity for something better. In the family conflict, it’s rare that people are able to access that potential for creativity and social change, or personal change. As a coach, I ask questions around what the individual envisions for himself or herself in ten years. Most people are not asking these questions of themselves when they are going through a separation. I think that it’s powerful to ask those questions. At the very least, being able to identify this vision creates something upon which the individual can reflect, hold on to, and measure progress. The reality, however, is that people need to grieve, and often they need to be stuck in mud for a while during their grieving process and that’s a part of it too.
Q: It’s clear how large-scale, societal conflict can lead to social change. What about social change within the microcosm of one family going through a separation or divorce?
A: I often hear that conflict is like fire. It has the potential to be devastating and burn everything down. It also has the potential to create electricity, heat and comfort and s’mores. Generally, when people are going through a separation or divorce, they’re more on the side of burning everything down. The same is true in the microcosm of a family, that it often feels like the destructive side of conflict but every now and then there are glimmers of possibility in the form of mutual understanding, or opportunities to talk about issues that the parties haven’t previously been able to discuss. Those moments are opportunities. If as a mediator or a coach, I can help people to catch that and notice it, it opens the possibility for them to come back to it eventually.
Interview by Faria Marlatt. Faria Marlatt is an associate at Martha McCarthy and Company LLP and practices exclusively in the area of Family Law. Faria holds a JD from the University of Toronto and a Master’s Degree in Human Rights Law from the School of Oriental and African Studies at the University of London.