The Role of the Mediator in Family Disputes

February 20, 2022 Mike MacConnell

Mediation has recently become a popular way to settle cases of separation and divorce. Unlike a lawyer, who is trained to take the side of one client and give advice, a mediator is asked to be “in the middle” of those in dispute. Mediators facilitate conversations that ensure you negotiate respectfully with one another. You reconcile your differences by constructing an agreement acceptable to both parties, without the mediator taking sides or imposing any binding decisions.

There are some real advantages to this way of resolving disputes:

· It is less stressful than a court trial

· It’s less expensive and is over more quickly

· A judge doesn’t make the final decision. Parties in dispute work it out together

· The process is confidential, whereas court trials are on the public record

· Because mediation requires respectful communication and mutual decision-making, it tends to improve communication between divorcing parents. This has future benefits when you are co-parenting.

Family mediation has applications far beyond separation and divorce, such as parent-child or sibling disputes. Only some marriages come to an end, but nearly all families experience conflict and tension at some time or other. Many families could improve relationships and avoid future breakdown if they brought in an impartial third party to facilitate respectful, open conversation.

Disputes also arise in workplace and commercial settings, but at the end of the day you can go home and get on with your life. Not so with family disputes. You can’t change your blood relations. Family conflict impacts the most important relationships in your life, your core identity and deepest values.

Differences between people are natural and inevitable. The problem isn’t that differences exist. The problem is that we communicate poorly and avoid issues until they grow out of control. People may react with frigid silences, explosions of fury or suppressed emotions that affect their health. Well managed communication can prevent those misunderstandings and heal those wounds.

Facilitated conversations are not easy, nor are they guaranteed, even with the help of a mediator. To provide a safe space, mediators need to screen clients to ensure willingness and ability to negotiate in good faith. By that, I mean a readiness to accept the legitimacy of the other person’s point of view and a willingness to collaborate on reaching terms of agreement that meet the needs of both sides, not just your own.

Private coaching is often offered in advance of joint sessions to cultivate non-adversarial skills. In the heat of conflict, you are likely to discredit the other person. You imagine they are less worthy, that their motives are less noble than your own. When you are hurt, you may want to defeat and punish those who hurt you. These are natural reactions, but Mediation requires a calmer frame of mind. This process asks you to put aside the impulse to win and instead to seek what is fair.

This often amounts to mediating first within yourself. Check in to calm yourself down and challenge the impulse to label and judge the other person. The truth is you probably don’t understand them. This is family. There is love here, or at least there once was. Your goal is to cultivate your relationship so each of you thrives and love returns. Instead of judging and blaming yourself or the other person, mediation asks you to listen deeply to understand their unmet needs and thwarted wishes. Only then will they be open to understanding the needs and wishes that matter to you.

The presence of an impartial third party is helpful to keep the temperature of the room calm, to stay focused on one topic at a time and to slow the back-and-forth flow so that each person feels fully heard before moving to the next speaker.

Solutions are built on a foundation of understanding. Once you have listened deeply to one another, you will not find it difficult to reach agreement on how you each want to behave in the future.

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

How to Know if Mediation is Right for Your Divorce: The Goldilocks Solution

November 24, 2020 Mike MacConnell

COVID-19 restrictions have brought Jill and Ron’s marriage to the brink. They’ve agreed to divorce but not to much else. Ron thinks they should hire lawyers to work it out in court and suck up the costs. Jill doesn’t want to spend all that money and time or hand over decision-making power to a judge. To her it’s a no-brainer to hire a mediator to help work things out between them more amicably, quickly and inexpensively.

Is mediation the right solution? It often is, for a number of reasons:

1. You meet on your own time, at your own convenience, not when the court dictates. It can take a few weeks or months - not a few years as court often does.

2. You construct your own agreement including terms that make sense to you. The mediator facilitates the conversation but can’t impose any decision.

3. Costs are lower for two reasons: first, you split the mediator’s fees, rather than each paying the higher hourly fee of a lawyer; second, it almost always requires fewer hours.

4. Co-parenting is easier after facilitated problem-solving sessions. There is a chance of improving ongoing communications, which is a big win for your children.

5. Privacy is a guarantee in mediation, unlike court proceedings which are open to public scrutiny.

Mediation is preferred by more and more couples these days, and is successful 85% of the time. That missing 15% shows that it’s not always the best process for everyone. It is “The Goldilocks Solution” for parties who get along “just right”. Exceptions occur when conflict is too low or too high.

Too Low:

If Ron and Jill can amicably work out an agreement at the kitchen table, why hire a neutral third party? They can save the cash. They will only need lawyers at the end, to provide legal advice and prepare a Separation Agreement.

Too High:

If conflict escalates, Jill and Ron won’t negotiate well. This is a judgement call, unique to each case, but generally mediation is NOT recommended when any of the following questions is answered with “yes”:

· does a history of abuse in the relationship prevent one party from negotiating on his or her own behalf?

· does substance abuse or a mental health problem prevent Ron or Jill from rational problem solving?

· is emotional turmoil at a peak, preventing one or both from listening?

· is one party unwilling or unable to negotiate in good faith?

These situations give cause to pause, although they don’t necessarily preclude mediation. Sometimes it’s best to delay until parties calm down. Perhaps the couple can wait until medical or therapeutic support has been provided.

Mediators are also trained to offer accommodations such as inviting a lawyer or support person into sessions. Shuttle mediation can also be used to keep parties in separate rooms.

Most separating couples are in the Goldilocks middle range, with conflict neither too high or too low, but just right.

To learn more about Divorce Mediation: ReflectiveMediation.ca

ABOUT THE AUTHOR

Marriage Story: The aikido Approach

May 27, 2020 Mike MacConnell

I teach a college course in divorce mediation and was recently delighted by the dramatic opportunity presented by two students who were role-playing an upset wife and husband. In the role of mediator, I was demonstrating the subtle art of “going with” the other person, a communication technique that entails resisting the automatic tendency to “push back” when you disagree.

The student playing the “wife” barked out something like “The kids and I would be better off if you were dead”.

These were hurtful words, utterly unhelpful to reaching agreement. The natural reaction would be to halt the exchange with a reminder that parties had previously agreed to speak respectfully. I had no intention to reprimand. Her high emotion provided me with the perfect opportunity to demonstrate the Aikido approach.

Named after an ancient martial art, the Aikido approach, when applied to conflict resolution, teaches how to neutralize an attack without inflicting harm. Rather than retaliating, shaming or proving her wrong, this non-aggressive approach accepts the other person’s position and goes with it.

“That is a surprising statement.” I responded, “Do you mean what you said?”

“I mean every word. My children and I would be far better off if he was dead.”

“You must be carrying enormous pain to have such a wish. Help me understand how you believe it would make your life and the lives of your children better if their father was dead.” I turned to the “husband” and said, “Sir, I appreciate your restraint and ask you, if you can, to listen for the next few minutes without immediately responding.”

The student playing the “wife” improvised for a few minutes, painting an elaborate portrait of her “husband” as a useless internet-gamer and compulsive YouTube addict who was completely inept in caring for his family.

At one point the “husband” interrupted, “That’s untrue. You’re exaggerating unbelievably!”

“Sir, difficult as it must be, I’m asking you to let her continue. You don’t need to agree. I am not here to gather evidence or judge who is right or wrong. We are listening to what is true from her point of view. I promise we will soon get to hear your side. Will you agree just to listen for the next few minutes?”

“Ok.” he grumbled.

“Thank you.”

Turning to her, I said, “Thank you for expressing your point of view. I understand more fully now why this divorce is important to you. Please continue. How do you believe it would it be for your family? Imagine the children after the loss of their father. How would it be for them?”

The student tried to maintain her righteous indignation, but couldn’t carry on for long. Soon, on her own, she admitted her words might have been exaggerated, “Of course, I know the kids would miss him. They would miss playing video games together. And his pancakes. It’s just unfair, that’s all. I earn the salary and I take care of him like he’s one of the kids. He doesn’t carry his weight.”

“Now you’re getting to what matters.” I said, “Carrying one’s weight is an important issue to negotiate. It sounds like you are worried that adult responsibilities are currently out of balance. Sir, do you agree it’s important to balance your parenting responsibilities?”

“Yes, of course I do.”

“Then the two of you agree on an important principle. Now you’re moving forward. Let’s continue.” Her emotions had been legitimized, not shut down, which enabled her to correct herself without being pushed to do so.

Aikido-style negotiation focuses on what makes sense, and avoids getting derailed by what doesn’t. Instead of “fighting for peace” you are “being peaceful for peace”.

ABOUT THE AUTHOR