by Nathalie Boutet, www.collaborativelawblog.ca
Mediation is used by people who want to resolve disputes themselves rather than having a judge make decisions for them.
But because these people’s relationship is broken, they need a third party to facilitate the communication, and guide the negotiation.
Let’s explore these two themes.
1. Facilitate communication
As described in The Promise of Mediation: The Transformative Approach To Conflict, the mediator helps participants to have the most productive conversation they can have, including:
how each party sees the issue and the situation that each faces, what decisions are possible and
what each wants to do with these possible decisions.
Mediation is there because people have lost the ability to hear what it’s like for the other and can’t resolve their differences without outside help. Mediation is consequently perfect for people who are not getting along, so long as they are willing to keep an open mind to a variety of potential resolutions.
Communication is a two-way street. It requires that we can:
truly hear the other, and
communicate honestly how we see things.
When people are involved in a conflict, they so want to be right and prove the other wrong. But in reality, there is absolutely no such thing as a right or wrong point of view. There simply are different points of view.
The following is one of my favourite quotes:
“If I do not want what you want, please try not to tell me that my want is wrong.
Or if I believe other than you, at least pause before you correct my view.
Or if my emotion is less than yours, or more, given the same circumstances, try not to ask me to feel more strongly or weakly.
Or yet if I act, or fail to act, in the manner of your design for action, let me be.
I do not, for the moment at least, ask you to understand me. That will come only when you are willing to give up changing me into a copy of you.
I may be your spouse, your parent, your offspring, your friend, or your colleague. If you will allow me any of my own wants, or emotions, or beliefs, or actions, then you open yourself, so that some day these ways of mine might not seem so wrong, and might finally appear to you as right – for me. To put up with me is the first step to understanding me. Not that you embrace my ways as right for you, but that you are no longer irritated or disappointed with me for my seeming waywardness. And in understanding me you might come to prize my differences from you, and far from seeking to change me, preserve and even nurture those differences. “
David K. Keirsey
When we can see a situation from the point of view of another without thinking it’s wrong, we often can find common ground. This is the essence of a negotiation technique called “interest-based negotiation” that I employ in mediation.
2. Guide the negotiation
In addition to helping the parties with communication, the mediator will also act as a guide to ensure that all the legal and financial issues have been put on the agenda, understood, discussed and negotiated. Family law is very complex and separating couples lack the legal and financial knowledge to be able to complete the legal process on their own. A mediator is invaluable in these cases.
My wish is for separating people not to rush to retain aggressive lawyers that will not even inform them of the possibility of trying mediation before going to Court. Mediation is a great and effective process which is more likely to allow every member of the family to be well after the legal separation than Court.
Robert A. Baruch Bush and Joseph P. Folger, Jossey-Bass 2005