I’ve lost count of the number of times a client has told me, in our first meeting, that he or she doesn't imagine for a moment that mediation will work: relations are too bad, communication too strained, the other person too unreasonable, views too polarised, and so on. Based as it often is on past experience - abortive attempts to talk, unproductive and upsetting confrontations, deeply held and sometimes longstanding differences of views, strongly articulated - why on earth would clients hold out any hope for mediation?
But the fact is, that for most of those people who commit to dipping their feet into the family mediation pond, mediation does work. Where perhaps before they were drowning (to continue the analogy), as they work through the process they find themselves, over time, rising closer to the surface, where they can breathe more deeply and easily and the air is fresher. Indeed, they find they can keep themselves afloat and - ultimately - steer themselves to the safe haven of dry land. And this outcome isn't confined to the mediation room: what happens in the room ripples well beyond its walls, to the world outside, with clients finding themselves co-operating much better on all fronts, including in their day to day challenges as co-parents.
So, how is it that mediation works in this way, to produce outcomes which often confound its participants' own beliefs at the outset (and sometimes those of their legal advisers as well)? In the main, for one reason and one reason alone: that in mediation, we - and I take this to mean our clients - do things differently. Hardly revelationary: we're all familiar with (Albert Einstein’s?) definition of insanity as doing the same thing over and over again expecting a different result. Insanity indeed. And, assuming this to be true, then the converse - that if we do different things we will get a different result - may also be expected to hold true.
Some of the mediation differences are obvious: the quiet presence (in a controlled and calm environment) of that supportive third person, closely listening to what is unfolding between the participants, probing gently to hear said what really matters to each, setting an optimistic tone in the belief that resolution is possible, ensuring that both clients have fair opportunity to speak, and moving the conversation forward when otherwise it might threaten to become stuck. The impact on clients of that additional body in the room is a positive on which they often comment: 'It feels much easier to talk here', 'things are much calmer', 'we can talk in a way we don't anywhere else', 'I can say things here I haven't been able to on my own’.
Frequently, the conversation takes a different shape: parties to longstanding conflict, or between whom communication has substantially broken down, may well, at least in the early stages of mediation, choose to address their comments to the mediator, rather than more directly to one another. For many, this seems to free them up to say what they really need to, where perhaps they have not been able to do so previously. The mediator, in turn, will look to ensure that what has been said has been heard and understood by the other person: again, it is all too often the case in conflict, when our defences are up and our minds busy with our response, that we hear only what we expect to hear, when this may well be different from what is actually being said. The mediator at this point acts as 'translator' - confirming with the speaker what the mediator believes has been said, relaying this to the listener and then checking in with that listener as to what he/she understands has been said.
As clients come to realise that this is their opportunity to speak and be heard, the previously reticent - or even silent - grow ever more confident about saying what they would like to happen, sometimes with astonishing results. I well recall a mediation with a client who was all but silent in the early meetings and whose gaze never lifted from the floor. By the time we concluded mediation, she was able to look the father of their children in the eye, to talk directly to him about what she needed to happen and to articulate where she disagreed with him. They went away with a newfound understanding and respect, as well as a comprehensive Parenting Plan. Former partners - far from being perplexed by such a transformation - will frequently be heard to say that this is what they had been hoping for: 'If only we had been able to talk like this when we were together', 'it's all I've wanted for the past several months, to know what she thinks'.
Beyond this, the focus of mediation is also different: looking forwards at what is to happen, rather than back at what has happened. Of course, the past informs the future and no mediator worth their salt will suggest that what may have gone on before does not matter. It does, and to airbrush it from existence is fundamentally to disrespect one's clients. But what the mediator will do is gently refocus her clients on what lies ahead, while encouraging them, in resolving whatever may be in dispute now, to utilise past memories of what strategies worked better for them and to consign to the back of the drawer what didn't.
TO BE CONTINUED.....