A thoughtful way forward - mediation

Jenny Smith | 22 Mar 2023

INSIGHTS

I recently attended a training event as part of my CPD for my accreditation as a specialist family mediator. It was really good to get together with other like-minded family mediators and reminded me of the huge benefits of the mediation process for clients.

Mediation is one of several alternative dispute resolution methods. It can be a very useful way of helping parties to resolve all sorts of family law issues. Mediation is not always suitable for everyone. For example, it would not work where there have been allegations of abuse or where there is a power imbalance between the parties. But for many other cases, it is a cost-effective, efficient and, most important of all, non-polarising way forward.

The mediation process starts off with the mediator having an intake session with each of the parties separately. This was the focus of the recent training event I attended. Dr Margaret Kerr, the psychotherapist, started the training by telling us about Socratic questioning. In very basic terms, the Greek philosopher advocated thoughtful questioning, with the aim of exploring the issues rather than guiding to a particular outcome. What Dr Kerr told us really chimed with how I try to conduct mediations, particularly the intake sessions. The purpose of the intake sessions is to find out and understand more about what matters to each participant, what they hope to achieve from mediation and, importantly, to check that mediation is the most suitable process.

The whole ethos behind mediation is that rather than the mediator trying to impose solutions on parties, the parties themselves are the experts on their situation and, in turn, have the answers to the various issues which need to be resolved. Our job as good mediators is to help parties discover those answers.

It can be a real mind shift for a family law mediator who, like me, also practises as a family lawyer, often in adversarial situations. Because we want to help people, the impulse is to jump in and try to suggest ways forward or give advice. That is absolutely not the objective of mediation. The mediator can give legal information but not advice. Often, each party will have instructed a family lawyer of their own and will speak to their family lawyer for advice in between sessions.

A key tenet of mediation is the importance of listening. As a mediator, I obviously need to ensure focus is kept on the issues needing to be resolved but there should not be any rush or a sense of hurrying parties on. I will often clarify what parties say and I summarise regularly. Listening is such an important skill and it can often be forgotten. Our recent training reminded me of blocks to listening, such as thinking of what I am going to say next instead of focusing on what I am being told, or second-guessing what someone might be about to say. The other important point I was reminded of is the importance of being curious, of really wanting to discover what is important to parties and in turn how I can help them work out the best way forward for them and their families.

For whatever reason, mediation for family law issues is often overlooked in the toolkit of alternative dispute resolution methods. It can be seen as a “soft” option. In my view that is wrong. It is actually very hard work, for parties and mediators alike. Instead of a third party, for example, a Sheriff, Judge or Arbitrator, making decisions, parties are in control of what happens. It has so many advantages, the most important of which is that it aims to enable parties to work together. This can only be good for the future family dynamic, particularly where children are involved.

There are five accredited family law mediators at Harper Macleod.

Contact the team for more information. We’re here to help.