By Sarah Archibald
In anticipation of Family Mediation Week, I wanted to share my thoughts on mediation and why I think it is so successful. I am conscious there are many articles available already on the mechanics of mediation, when and where it may be appropriate and answers to the most common mediation FAQs. I therefore wanted to take this opportunity to dig a little deeper, and to assess the underlying psychology of mediation.
A halfway house
Although the personality and skillsets required by a therapist and family lawyer do often overlap, the job descriptions of these two professions by necessity sit at opposite ends of the spectrum. The lawyer will need to focus on obtaining facts, evidence and problem solving. The therapist will need to explore feelings, listen without any agenda and to avoid fixing. Mediation sits very comfortably halfway between these two professions, taking from both the skills needed to provide a unique approach to resolving conflict.
As a solicitor, I have received, and prepared, many letters representing only one side of the story, as is inevitable. I am there to represent and defend only my client. The process of negotiating in this way can sometimes lead to misunderstandings and unnecessary hurt. A mediator’s answer to this is to facilitate organic conversations in the mediation room (whether in person or remotely) allowing so much more to be captured than can be conveyed in a letter, including body language, intentions and underlying feelings. The benefits of a live conversation taking place, in a safe environment carefully managed by a professionally trained mediator, cannot be overstated. Talking through a problem, sharing concerns, reality testing solutions, all of these can help reduce the reactivity of the amygdala, the area of our brain responsible for our fight or flight response. When our amygdala is in overdrive we can very rarely effectively problem solve.
It is common in these solicitors’ letters that are sent day in and day out to advance one person’s position on a certain issue. But, like an iceberg in the ocean, only the very tip of the triangle is showing above water and in the letter. One person may want to sell the family home, cut all financial ties and move on with their lives (let’s call them “Mrs Sell”) and the other may be strongly against this idea, instead preferring to remain living in the property until much further down the line (let’s call them “Mr Keep”), to take an example. The motivations behind the positions adopted by Mrs Sell and Mr Keep lie deep under the water and off the page.
When a couple are separating, with understandably heightened emotions and sensitivities, the two tips of their icebergs can often appear miles apart. In mediation we dig below the surface of the water to see what is lying below both those often polar opposite positions. It comes to light that Mrs Sell is anxious about the ongoing need to work long hours in a stressful job, with every penny going to clear the mortgage each month, feeling she is stuck in limbo. A fresh start is more comfortable for Mrs Sell. It also comes to light that Mr Keep is anxious about how he will be able to manage his own finances going forward, given he has always been reliant on Mrs Sell to organise his finances. The status quo is more comfortable for Mr Keep.
Mediation allows these feelings to be voiced and heard, so that everyone can stand in the other’s shoes, just for a moment, to assess if there are reassurances that can be put forward to start building common ground. While the tips of the icebergs may be miles apart above the surface, digging further we may find that by the time we reach the base there is an area of overlapping common ground that can be explored and built on.
One of the key principles of mediation is that it is the clients who will make the decisions. To assist here, a skill that is often used in mediation is reframing, where different perspectives are explored and encouraged. This very practical tool, with its origins in cognitive and behavioural psychology. The aim is to encourage a more positive outlook and focus. So for Mrs Sell, we can reframe her concern as a concern about there being no end point. We can look to address that concern in mediation with specific agreed boundaries and timeframes in place. For Mr Keep, we can reframe his concern as a concern about there being no one out there to support him with managing his finances. We can explore all the options, including referring Mr Keep to another professional such as a financial adviser. In reframing the problem, the mediator aims to encourage the clients to be solution-focused. It is the shift in this perspective that is often so helpful in empowering everyone to explore their own options.
A large part of reframing involves highlighting common ground to bring people together, and reminding them of the progress made so far. For Mrs Sell and Mr Keep, their common ground is their desire to ensure their young children are rehoused in any agreement reached. It is important to not let this shared love and concern for their children pass by unnoticed. Reframing was arguably one of the most simple and effective tools used by Barack Obama in his 2008 Presidential win, by focusing America on the forces that united the country rather than those that divided them.
So to answer the question posed at the start of this article, I believe that mediation is as popular as it is because it lies at the intersection of therapy and solicitors’ negotiations, not being either of those professions, but taking skills from both to try and resolve issues arising from a separation. Mediators will listen to not just the facts and figures, but the feelings and emotions as all of these have a crucial role to play in helping people to move forward.
It is important to bear in mind that mediation is not a forum for guns at dawn, nor for therapeutic intervention. There may therefore be times where people are feeling too overwhelmed or angry with the raw emotions surrounding a separation for mediation to be suitable for them at that time. Mediation should always be a safe space, physically and emotionally, for everyone present in the room. Timing is often key.
How TWM can help you
To find out more about how our family mediation could help you with your personal situation, please contact a member of our Family Law team.
Sarah Archibald, Managing Associate and Mediator in Family Law
Direct: 01372 731198
Caroline Keeley, Partner, Mediator and Head of Family Law
Direct: 01483 752715