WHAT IS MEDIATION?

This might be a strange question as everyone assumes they know what mediation is.   But when you also have collaboration, arbitration and compromise, what exactly is mediation and how does it differ from the other approaches to problem-solving?

Two young childrenWith mediation there is generally one mediator with two people who have, for whatever reason, not been able to resolve the difficulties between them.  There may be some conflict; if there is a relationship breakdown there is generally a degree of hurt, anger, sadness and other emotions, all of which can make it difficult to resolve issues.  But the point is to deal with differences, not in a destructive adversarial way, but with a more rational, positive approach to problem-solving.  You are not going to eliminate conflict but rather transform it and separate those involved and their emotions from the particular problems.

The issues or problems can be:  how are the couple going to separate, where are they going to live, how are they going to manage the children?  There will need to be some degree of co-parenting but how will this work out in practise?  A rational approach does not mean leaving aside personal feelings but to try and concentrate on what the problems are, not the emotional aspects of the relationship.

If you are separating it must be better to work towards your own solutions rather than having a decision dictated by someone else.  So often you hear talk about “going to Court” as if it is some sort of panacea that will automatically solve all the problems.  It might produce a decision but whether it is the right decision is a moot point.  It is not the decision the parties may have chosen for themselves and it is sometimes not one that may have thoroughly considered the practicalities of its implementation.  The best solution for a couple going through a divorce or separation is one they have created rather than the one that is imposed.

It may be difficult not to take up positions and feel that any sort of compromise is giving in.  But the more people position themselves, the more committed they become to that position, defending it against attack and so becoming concerned about saving face rather than reaching an agreement.  The more attention that is paid to positions, the less attention is devoted to meeting the underlying concerns of both parties.  A mediator can help move from positions to focusing on what the parties really want, looking at interests rather than positions.

Mediation is not a question of one party imposing their view, as any settlement achieved by hard bargaining may resort in short-term gain but often the result is damaging to the relationship.  The whole point of working through issues either through mediation or the collaborative process is to preserve some sort of relationship between the parties.  Although parents might be separating, it remains essential for their children that they maintain the ability to communicate.

People often come to mediation realising that the stakes are high and feeling threatened, fearful or anxious.  Emotions in one party will generate emotions in the other – fear and anger may take over.  It is important to recognise, understand and acknowledge emotions, many of which are driven by concerns.  Attending to those concerns can possibly deal with the emotions and so create a more positive climate for problem-solving.  Emotions are legitimate but they should not necessarily take over and determine outcomes.

With the lack of legal aid now available to fund most Family Court actions and with the cost of arguing through Lawyers and the Courts rising, it makes sense to look for alternative ways to problem-solve.  Mediation and the collaborative approach in divorce not only are a means of problem-solving, without the bitterness that can ensue with Court battles, but also far more cost effective.  For more information see www.cotswoldfamilylaw.co.uk and www.cotswoldmediation.com or call 01608 686 590 or email at info@cotswoldfamilylaw.co.uk.