Country:
Poland

Language:
English

1. INTRODUCTION

Divorce mediation in Poland is in an initial stage of development. The main reasons for that are: lack of appropriate legislative regulations concerning divorce mediation, insufficient professional experience of mediators, low awareness level of judges and prospective clients as to what mediation actually is (Przybyla-Basista, 2000a).
The legal status of family mediation (including divorce mediation) in Poland is unclear since the civil code does not recognize mediation as a legal institution. Therefore, a divorcing couple is most often referred by the court to one of the so-called Family Diagnostic Consultative Centers to obtain an opinion whether their marriage has definitely terminated or, in case of couples with children, to get the Center's opinion who of the spouses should take a steady care of the children. Some of the judges expect on this occasion that the Family Diagnostic Consultative Center will conduct mediation between divorcing spouses. Hence, we are having now kind of a mandatory system of mediation rather than a voluntary one. The ambiguous legal status of divorce mediation is not conducive to creation of court-independent private mediation centers. At the moment, there is only one private mediation center dealing with a wide spectrum of problems related to diverse kinds of conflicts, with family conflicts being merely one group of them. Most of the cases, mediation between spouses in conflict are organized out of the court in private therapeutic practices. Here, mediation is being realized as a part of marital or family therapy. However, this kind of mediation is, firstly, limited to a specific group of clients who are motivated to seek a solution to their conflict and, secondly, does not have its epilog in court. Consequently, the agreement that has been worked out through mediation is legally not valid. Altogether, the idea of family and divorce mediation is still poorly advertised and practiced in Poland.
First of all, those who are most interested in mediation services in Poland are the psychologists and educators from Family Diagnostic Consultative Centers cooperating with the courts. Although mediation activities are not of primary importance for this group of professionals since their basic duties consist in diagnosis and expertise work for the courts, it is they who are most often appointed by the courts as mediators. In recent years, many practitioners have pointed out that changes in this field are necessary. They postulated for example creation of separate centers for diagnosis and separate ones for the family (divorce, child custody) mediation.
A growing interest in family and divorce mediation reported by Polish psychologists is not shared as yet by the prospective clients of mediation (Przybyla-Basista, 2000a). The reasons for the minor interest in mediation among the prospective clients are: (1). Low common awareness of how useful mediation can be. This is amplified by the lack of information as to where and by whom such services are offered, in particular in divorce cases; (2). Lack of professional mediation centers; (3). The fact that lawyers are not interested in offering such services; (4). No political or related activity to sanction mediation by the law; (5). Non-existent tradition that help in solving marital conflicts heading for divorce can be obtained from a third party, especially from a professional mediator.
The above described state of mediation in Poland may well be a potential source of resistance against introduction of the divorce mediation to common practice. The resistance to mediation may be manifested by clients, judges, lawyers and even some psychologists and educators from Family Diagnostic Consultative Centers who have already got used to their previous duties.
In this paper we will be concerned with an analysis of resistance and readiness to divorce mediation among prospective clients. It is felt that the slow growth of interest in mediation in Poland offers specific and unique conditions for an investigation of the resistance and readiness to mediation. It is therefore worthwhile to ask a question: what are the reasons for the clients' resistance to mediation and, further, what are the factors that influence their readiness to start mediation? In this study it has been assumed that since routine legal and social mechanisms to undertake mediation are as yet absent, it will be more rational and straightforward to investigate individual variables related to the resistance or readiness to mediation.

2. OBJECTIVE

As the mediation practice has developed in the past three decades, more and more researchers have become interested in it. Study of the existing literature indicates that research in family mediation problems mainly concentrated on the analysis of mediation process, discussion of results, effectiveness, client satisfaction, predictors of mediated agreement (Benjamin & Irving, 1995; Folberg & Milne, 1988; Irving & Benjamin, 1995; Pearson & Thoennes, 1989); descriptions of mediation strategies and techniques (Barsky, 1984; McLauglin, Carnevale & Lim, 1991), the role of children in mediation (Lansky et al., 1996; Beck & Biank, 1997; Emery & Wyer,1987), the use of mediation in domestic violence (Pearson, 1997) and connections between divorce education and mediation (Arbuthnot & Kramer, 1998). Generally, studies on efficacy of family mediations can be arranged in three categories: process studies, result studies, and predictors of mediated agreement (Benjamin & Irving, 1995).
Among predictors of mediated agreement, the readiness of parties to mediate and the resistance to divorce mediation are worth consideration. An overview of the research literature indicates that more research efforts have gone into investigation of the readiness to mediation than the resistance to mediation.
The majority of papers on the readiness and motivation of the parties to seek agreement through marital mediation was published in the eighties (e.g. Fuhr, 1989; Haynes, 1985; Peachey, 1989; Kelly & Gigy, 1989; Kelly, Gigy & Hausman, 1988; Pearson & Thoennes, 1988; 1989; Thoennes & Pearson, 1985).
Results of these studies are quite promising and encouraging for researchers to start more in-depth investigations on the influence of pre-mediation variables on the effectiveness of divorce mediation process. These variables include motivation for agreeing to mediation, readiness, communication and cooperation between spouses, intensity of dispute and resistance to mediation.
Fuhr (1989) emphasizes the need to develop empirical measures capable of discriminating between those couples who are ready for mediation, and those who are not. Undoubtedly, development of such studies will sharpen the prognostic capacity of mediators selecting clients for mediation and may facilitate devising of new methods to handle clients' resistance.
The research works on the resistance to mediation or during the process of mediation are scarce (e.g. Volpe & Bahn, 1987). The fact that less research has been done to investigate the problem of resistance to mediation may have to do with the role of mediator. The mediator's principal task is not to focus on clients' resistance to mediation but to develop and apply such techniques and strategies that will fill the gap between the two parties' readiness and willingness to settle (Haynes, 1985). Consequently, the mediator tries to overcome or utilize clients' resistance to mediation leaving aside the analysis of mediation as a phenomenon. Similar approach is used in short-term and strategy-oriented psychotherapies (Wells & Giannetti, 1990; Watzlawick et al., 1974).
We define resistance as actions undertaken by parties, both conscious and unconscious, that may impede or disrupt expected behavior (or changes in that behavior), and slow down or even stop the decision of entering mediation. Resistance can be manifested on two levels: behaviors and convictions. Resistance to mediation may have influence on: (a) party's decision of entering mediation, (b) process of mediation thereafter.
The objective of this research project is an analysis of the structure of resistance and readiness to enter divorce mediation with the emphasis on factors specific of Poland. We hope that results of this study will help to broaden our knowledge about the factors influencing the efficiency of mediation.
The present empirical investigation contained the following questions:
· What are the components of readiness to divorce mediation, and what is their structure like?
· What are the components of resistance to divorce mediation, and what is their structure like?

3. METHOD

A. Participants

The participants of this study were 136 persons 20-44 years old (mean = 25.53, std. dev. = 5.88). Among N = 136 individuals, 108 were undergraduate students, the remaining 28 were post-graduate students. The majority of respondents (98 persons, 72%) had full-time jobs. 121 subjects (89%) were women while only 15 were men (11%). The participants were either married (31%) or single (69%) but having a partner (now or in the past). An overwhelming majority (123 i.e. 90.5%) was catholic but only 65% regularly went to church while 26% called themselves "passive" catholic; 7% characterized themselves as non-believers, 2% belonged to other churches.
Choosing students as subjects resulted from the following premises:
· This investigation was concerned with an imaginary situation of marital conflict and threat of divorce. Therefore, it was assumed that most important are here the cultural experiences and religious orientations while the individual perceptions of ongoing marital conflicts would be of less influence.
· Furthermore, it was assumed that in comparison with low-educated groups, a homogeneously and relatively high educated group of people would be more aware of mediation as a choice of solving marital conflicts which is alternative to traditional adversarial divorce process in the court. This assumption seems to be confirmed also in Kelly & Gigy (1989), Pearson & Thoennes (1989).

B. Procedure

As was mentioned in the preceding section, the investigation was carried out in an imaginary situation of marital conflict and threat of divorce. In other words, the subjects were first asked to fill in the initial part of a questionnaire and then to imagine themselves a situation in which marital conflicts would be so deep that decision of divorce was unavoidable. As a next step, the subjects were asked to complete the questionnaire. The research task was to examine the components of readiness and resistance to divorce mediation. The empirical part of this project was carried out from March to May 1999.
The project consisted of the following stages:
(1) The participants responded to the first part of the questionnaire entitled "Readiness to seek help in solving conflicts". This part referred to their past experience in solving intense family, marital, or partnership conflicts. Also, they were asked to describe their experience in using third-party (professional or not) to help them solve the conflicts.
(2) The participants imagined themselves a situation of a deep marital conflict leading to the decision of divorce.
(3) Next, they filled in the second part of the questionnaire being a test that consisted of 16 items exploring the readiness for divorce mediation and 18 items exploring the resistance to divorce mediation in imaginary situations of marital conflicts leading to the decision of divorce. The participants were supposed to evaluate each item on a 5-grade scale, where grade 5 denoted full agreement, while 1 - full disagreement with a statement of the test.

This investigation was a part of a larger research project in which the subjects who responded to the above mentioned questionnaire participated next in an educational training in divorce mediation. After the training, they responded to the same test of readiness and resistance to divorce mediation (post-test). The training had two aims: (1) to provide participants with the knowledge and experience regarding styles of conflict resolution and advantages of divorce mediation, (2) to try to change their attitudes toward reduction of resistance and enhancement of readiness to divorce mediation. The detailed results concerning the influence of that educational training on the readiness and resistance to divorce mediation are presented in a separate paper (Przybyla-Basista, 2000c).

4. RESULTS

Since the readiness and resistance to divorce mediation are complex problems (cf. Kelly & Gigy, 1989; Volpe & Bahn, 1987), a factor analysis was performed within this study using the data from the performed test. The method adopted was that of principal axes factoring with rotation VARIMAX. It led to the selection of 4 specific factors for readiness and 5 factors for resistance. The loadings of all items were statistically significant, and for further analysis were taken those of highest levels. Below, the results of factor analysis are presented.

READINESS FOR DIVORCE MEDIATION

The following readiness factors were distinguished:

· Factor 1: Task-oriented (pragmatic) attitude toward divorce. This factor consists of items describing the attitudes focusing on putting in order the issues that are still binding the spouses e.g. property and finance issues, setting the rules of taking care of children, willingness to reduce the court-induced costs and the role of lawyers in divorce process. This factor reflects thus a pragmatic attitude of prospective clients' to divorce once the divorce decision has been made. Generally, this factor characterized individuals who hoped that divorce mediation would enable smooth settlements in all the argument issues related with their divorce.

· Factor 2: Attitude to maintain marriage. This factor consists of items reflecting the attitude of prospective clients that marriage must be maintained (even if love is lacking) for the sake of children, or because of religious reasons that exclude divorce.

· Factor 3: Positive attitude toward mediator and mediation procedure. This factor consists of items reflecting prospective clients' conviction that mediator will play a positive role in search of a "just solution" of their conflict. Entering the mediation process is treated as a chance to make good decisions, and is not motivated by the a priori made decisions to maintain or break marriage.

· Factor 4: Hope to overcome own helplessness. This factor comprises items reflecting the feeling of spouse's own inability to act in marital conflicts. The prospective clients seeking mediation are driven by a tacit assumption that their marriage might still be saved in the course of mediation process.

Comparing the responses of married and single participants, no statistically significant differences were noted in the factors of readiness to divorce mediations between these two subgroups.

RESISTANCE TO ENTER DIVORCE MEDIATION

The factor analysis yielded the following 5 factors of resistance to enter divorce mediation:

· Factor 1. Resistance to share conflict with third party. This factor is related to the reluctance of prospective clients to share private (sometimes very intimate) marital problems with other person. Marital conflicts should be resolved by the spouses and only within the marriage. This attitude (combined with religious constraints about divorce) makes it necessary to solve marital conflicts on spouses' own. According to this reasoning, mediator as a third party is unable to fully understand the essence of the conflict and keep a neutral position.

· Factor 2. Mediator-related resistance. This is an imagination-shaped kind of resistance that is related to the character and reactions of the mediator. Typically of this factor, the prospective clients of mediation fear shame, criticism, and superficial treatment of their problems. They may feel lack of confidence whether the mediator will keep their problems secret. All that produces fear and reservations. Also, they have doubts with regard to mediator's professional competence, experience and sensitivity what is necessary to entirely understand their marital conflict.

· Factor 3. Resistance related to advanced stage of conflict. Here, mediation is not accepted because marital conflict is already very deep. The partners' mutual relations are negative, thinking of divorce is already present and the hope for effective mediations is abandoned. The only way out in such conflict stage is seen in the court. A hidden assumption emerges that mediation makes sense only if it ends up with reconciliation and maintaining of marriage and this is not possible in such advanced stage of conflict. This attitude stems most likely form the lack of knowledge about possibilities of employing mediation in divorce cases.

· Factor 4. Resistance to confrontation with spouse. Here, the resistance is driven by fear of how the mediation process is going to develop and the confrontation with the spouse and his (her) resistance. The parties are afraid of that mediation may even exacerbate the conflict since touchy things are discussed.

· Factor 5. Lack of knowledge on mediation. This resistance is caused by insufficient information as to who and where offers such services and what can be achieved through mediation in divorce cases.

Comparing the resistance to divorce mediations of married vs. single participants, statistically significant differences were observed only with respect to factor 2 (mediator-related resistance). It may be interpreted that singles are more susceptible to feel shame and fear when revealing secret facts of their (imaginary) marriages to mediator than married participants. Singles had also more doubts whether the mediator will show enough sensitivity and experience to thoroughly understand their problems. Results concerning other factors were practically the same in the two subgroups.

A detailed discussion of results containing the exact data on loadings and values of each factor and pointing out the differences between the results for single vs. married subjects is given in Przybyla-Basista (2000b)

5. DISCUSSION AND CONCLUSIONS

The presented investigation has enabled an initial analysis of the phenomena of resistance and readiness to divorce mediation. Four factors for readiness and five factors for resistance to divorce mediation have been distinguished.
It is interesting to note that Factor 1 of readiness (task-oriented or pragmatic attitude toward divorce) is similar to the results of Kelly & Gigy (1989) obtained for divorcing couples in the USA who decided to enter mediation. Kelly and Gigy called their factor "practical or financial reasons for entering mediation" and referred this factor to individuals who wanted to reduce contact with lawyers and legal procedures; to be responsible for divorce cost, and to have a more personal input and control over divorce process. Consequently, a conclusion can be drawn that in both (Polish and American) groups of subjects, a pragmatic attitude to divorce in case when the decision of divorce has already been made is an important motivation to enter divorce mediation.

Factor 3 of readiness (positive attitude toward mediator and mediation procedure) and Factor 4 of readiness (hope to overcome own helplessness) indicate that positive expectations expressed toward mediation procedure may help to overcome spouses' helplessness in marital conflicts. These factors may facilitate mediation that is already in progress since they strengthen clients' confidence in the mediator and the offered solutions to resolve the conflict.

On the other hand, Factor 2 of readiness (attitude to maintain marriage) creates a particular climate which may facilitate entering (and continuing) mediation only in certain conditions. Such persons will be positively motivated to mediation only if they recognize in it a chance for reconciliation and rebuilding of their marriages. This kind of motivation suggests that for them the only "good" solution of the marital conflict is to maintain marriage. This motivation may impede negotiations between partners. In other cases, if one of the spouses finds out that the partner is not interested in maintaining the marriage, it may transform into strong resistance that may in extreme cases end up with abandoning the mediation process. Such persons may not be interested in solving problems important for the partner. Difficulties of this kind are corroborated by observations from the mediation practice and results of research (Haynes, 1985; Fuhr, 1989). Moreover, it seems that Factor 2 of readiness may be more specific of Polish subjects than American ones because of religious motivations (90.5% of subjects were catholic what excludes divorce but admits separation).

Let us now summarize the results of factor analysis with regard to resistance to divorce mediation. All these resistance factors may be a consequence of: (1) conceiving mediation as an unknown and not popular in Poland a method of solving marital conflicts, or (2) conscious reluctance to enter mediation as it is, in their understanding, useless in advanced stage of the conflict or they fear unavoidable confrontation with the partner. Factor 1 of resistance (resistance to share conflict with third party) is in tune with Polish tradition of treating marital conflicts as very private affairs and revealing them only when faced with a threat of divorce. In Poland, there seems to exist a specific cultural element that affects the decision of entering mediation: In common mentality, marital conflicts should not be shared with a third party. It is worth emphasizing that Poles rather rarely ask for psychotherapeutic help in case of family problems and crises. Leaving aside the cultural elements specific of Poland, it is perhaps worth mentioning that Benjamin (1998) suggests that resistance in negotiations and mediation is deeply rooted in culture.
More detailed implications of this investigation concerning the readiness and resistance to mediation are contained in Przybyla-Basista (2000b).

The presented stage of the research program has a few shortcomings. For example, some of the conclusions should be taken with a bit of caution since the sample had certain specific characteristics like dominance of women and singles among the subjects. Also, it should be kept in mind that the investigation referred to an imaginary divorce situation and not to a real one. This stage of the project was necessary in order to recognize the phenomena of readiness and resistance to mediation among potential clients and to emphasize a possible influence of their social and cultural convictions on the decision to enter divorce mediation

Recently, a new stage of the research program has been started by the present author on a real group of divorced or divorcing couples coming to Family Diagnostic Consultative Centers all over Poland. To this end, a large-scale project is currently being carried out aiming at an investigation of the readiness and resistance manifested by divorcing spouses who are taking part in divorce mediation or refused to do it.

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