Family Mediation – Why would you try it?

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By Barbara McCulloch

I was at home recently, feeling really unwell and watching Game of Thrones on a DVD (as you do). Somewhere in the episode I remember thinking, “I wonder if I should tell them I know a good mediator” and following that I thought, “Do we make enough of a difference”? You can probably guess my state of mind at the time.

I like watching good dramas on TV. When I analyse why, I have a sense that the characters I admire often have traits in common-they have a grittiness and a curiosity and an attention to detail and a sense of morality and also a touch of maverick. They do what they do to make a difference, much, I think, as mediators do.

Recently I mediated with a couple who had separated after 14 years of marriage and had simply stopped talking to each. They had two school aged children so not talking was quite a big problem. One parent wanted to take the children on an international trip and was quite enraged that he’d need their mother’s consent. At the end of the mediation, one party said, “This is the best money I ever spent” and the other party said, “Thanks for making it easier”. A few words expressing deeply felt sentiments. I think we need times like that to counter-balance the grinding out times-much like police work.  

Another of the mediations I did involve a young couple in their twenties. It began with the parent of one of the two participants trying very hard to derail the process before it had ever started. “It will never work,” said the grandfather; “they are too young, they can’t communicate, they’ve already made a hash of things. This will only make it worse. Why doesn’t he just do the decent thing and leave the children to her?”

In fact, these two separating parents demonstrated such a genuine respect and care for each other, for their two very young children and for their ongoing relationship as co-parents that my heart soared with admiration for them. The day after the mediation I received an email from them both that read: “M & I just wanted to thank you for your time and effort in our mediation. We are both happy with the outcome and what the future looks like. Again - thank you!”

Not only did this remind me of why I’d become a mediator, but it also reminded me that we mediators do good work and should share more of our good work stories. There’s a lot of negative talk about mediation (and about family mediation in particular) I sometimes wonder if the nay-sayers have ever experienced good mediation with real mediators- or whether they are simply captured by their own anxieties. 

So, I started looking for supporting evidence of the good results stories.

Mediate.com is a wonderful (and free) resource for people who are interested in conflict resolution. Recently, Michael P. Carborne wrote an article entitled, “Mediation Strategies: A Lawyer’s Guide to Successful Negotiation” in which he recommended mediation for parties who considered themselves to be “too far apart” or who said, “It would be a waste of time because the other side is so unreasonable.” He said that whenever he hears this refrain, he advises that “these are the very reasons why mediation is indicated”.

Bringing people together (sometimes in the same room, sometimes in the same building but in different rooms, sometimes on the same Skype call, sometimes in the same online virtual conversation) and assisting them to listen to each other and to better understand the underlying needs of each other and helping people to communicate well enough to craft solutions that are mutually acceptable, is what mediators do.
Sometimes we also find ways to hear from and include extended family members-the people who our clients will need to support them after the mediation has concluded. Sometimes we also find ways to hear from the children-the smaller people who our clients are trying to do their best for.

Mediators help whenever we have to have difficult conversations or make hard decisions. We help when you separate from your partner or spouse, we help when you don’t agree on how to parent your teenagers, we help when your parents become elderly and plans have to be made for their care, we help with endings (to make them more civilized) and we help with outcomes (to make them more fair) and we help with transitions (so that decisions are more acceptable and easily implemented).

This is what we trained for and it’s what we get paid for. In family mediation, mediators have an added bonus because we are able -as well as legally obliged – to consider (and to encourage the separating parents to consider) the children’s best interests and long-term welfare during the decision-making process.

How can we-the mediators- know about your children’s welfare? Research about what is good for children comes to some remarkably sensible and common conclusions. Here are some research based conclusions:

• Children do best when their separated parents care about them enough set aside their own emotional pain to collaborate with each other to make child focused decisions.

• Children do best when they have the best possible relationships with both of their parents.

• Children do best when they have easy contact with their parents and with their extended family members.

• Children do best when they are provided with shelter and food and warmth and safety and an ability to participate in things that interest them and when these things are provided by people who care about them as individuals.

• In 2015 in New Zealand, of the completed family mediations, 57% of participants resolved all matters in dispute; 24% resolved some matters in dispute and only19% had no matters resolved.

It’s important, I think, to notice that these research conclusions aren’t bound by descriptions of “good” or “bad” parents. The conclusions seem to say that children do best when they have the best possible relationships with both parents and that this applies even when one parent (or both parents) would be unlikely to win parent of the year competitions.

I mediated with a couple who had separated after 16 years of marriage. They’d been passionate when they were together, and they were now passionately apart. 

Their grief and despair and fury and betrayal were all on show and they were very articulate people. At one point one partner talked about their ability to have spectacular fights and I thought, “I’ve noticed that”.

They were also passionate about their children and clearly wanted to do the best for them: two teenagers who had not reacted well to the break-up of their family unit.

The mediation process took time, spread over a number of weeks. Sometimes we met together and sometimes we met separately and each time we inched towards an agreement.
And then one of them would lose perspective and loud cluster bombs full of hurt and angry words would fall and then, after a period of frozen silence, one of them would recommence the mediation process.

Sadly, we didn’t get to a signed settlement-traditionally the gold star of mediation achievement. I’d realised that formally agreeing to anything was simply too big a step at that time but despite declining to sign the final iteration, they both wanted to keep a copy. I complied with the regulations and so ended the mediation. Neither of them used their prerogative to apply to the Family Court.

Recently one party came back to see me-requesting coaching. They had followed their not- signed agreement and even added small things that had benefitted everyone and particularly the children. In the not signed-agreement, they had said that they would review their parenting plan at the end of term one, and that time was now, co-incidentally aligned with the anniversary of the parents’ separation. What to do with a not signed -agreement?

We talked quite a lot about anniversaries and why they are important. A first anniversary marks an ending but also marks a year of survival. Separating as parents means that in the first year, everything is new and a steep learning curve-first separated birthdays, first separated Christmas and Easter, first separated and non -celebrated wedding anniversary….

Most of us survive. We are battered and bruised and much poorer but we survive and we find ways to manage. We discover that having someone else take the kids to school each day allows us to get to work on time and even have a coffee along the way. We discover that he did remember the kids’ birthdays after all. We discover that she can manage on a budget.

Can we grieve and celebrate at the same time? My coaching client and I talked about the importance of wallowing on anniversaries. I introduced him to my learnings from Bridget Jones’ Diary in regard to wallowing. He laughed.
He had a need to move on-go faster towards his goal. He wanted his kids to meet his new partner.

“Big step,” I said. He looked quizzical.

I asked some questions: “Do your children show any curiosity about your new partner?”

“No”.

“Do they ask about your new life?”

“No”.

“So, each week or each fortnight, you go to the house you all used to live in and spend time there with the children, sometimes overnight and mostly their mother goes somewhere else?”

“Yes”.

“What is that like for you?”

“It feels like I’m pretending”.

So, we talked about pretending and about how teenagers might relate to that. We talked about the opposite of pretending and he thought it might be authentic. We talked about how teenagers might relate to that.

He decided to wait until after “the anniversary” and to play that by ear. He decided to have a conversation about pretending and about being real and find out what they thought and how they felt about that.

We talked about whether he could find a way to make a “Dad space” which was not his new home with his new partner but somewhere for him and his kids to be real.
We talked about how it could be if his children never wanted to meet his new partner. We talked about shape shifting and how families really do come in all shapes and sizes.

This man does not have a legal problem-he has a family relationship problem. If he went to Court and if he “won”, his family relationship problem would still exist (and might even be worse). Family mediation, including coaching, focuses on resolving family problems. It often works really well-despite or because of its ability to tolerate messy lives.
It also works well because we-the family mediators-are on everyone’s side and we want you-the separated parents to align yourselves-as much as possible-with each other as co-parents for the benefit of your children. (Courts don’t do this-they clarify what the legal issues are and apply the Law to those issues).

Why do separating or separated parents come to family mediation?

Parenting is hard work and co-parenting is harder work-particularly in society’s norm of the nuclear family structure. Parenting alone can be the hardest work of all. We need to rely on the other parent to do their part: to be reliable, to turn up, to contribute, to put the children first. Not too many separated parents describe each other in quite those terms and so again-mediators help. Sometimes it doesn’t have a happy ending but remarkably often, it does. Or at least it has a better ending.

Carborne again: “Stories abound of cases that were thought to be hopeless but that still settled at mediation….  In most of the cases that I mediate, we start the day with the two sides at opposite ends of the spectrum. Opinions about responsibility seem to be diametrically opposed….  But the trick is to keep talking because the longer that the parties talk the closer they will usually get to a solution”.

Judge Joe Harman (Australia) presented conference papers recently and talked about his view-based on his experience and his research-that all matters coming to the Family Court should be required to go to Family Mediation first. He bases this on some research he completed, using his own caseload in two courts, where 20% of his caseload was resolved by using a family mediator. He talked about the difference that this made to his workload, his ability to prioritize, to waiting times and-most importantly- to the families involved.

We mediators are not miracle workers, but we do have the ability to focus on what is important and to use techniques that work. We know that no-one will ever feel the same way about the children as you-their parents. No-one else will ever celebrate the child’s joys or grieve their pain as much as you-their parents.

The threat of losing contact with a child drives most of us into our darkest nightmares and causes us to react by fighting to extreme levels…. because we want and need to stay relevant. While we adults might all have a series of “exes” in our lives: ex friends, ex employers, ex partners… not many of us have-or can imagine-an ex-child. The English language (renowned for having words for everything) doesn’t have a word for a parent who has an ex-child.

Sometimes our fear reaction can manifest itself as “control”. Sometimes people talk about “my rights as a parent”. Sometimes one parent demonizes the other in order to try to convince the mediator-and the children-that the other is such a bad parent that only by giving control to one parent (me!) can the children survive.

In those moments parents forget that the child is the product of both of their genes and that the parental characteristics being criticised so loudly are likely to be part of the child’s make up as well as the other parent’s.

And so a small number of people will not manage to succeed in a mediated environment and will need to take a trip to the Family Court. They will need all of the resources available-lawyers, counsel for the children, psychologists’ reports, defended hearings and finally a decision made by a Family Court judge. My view is that the services available to families in the deepest distress should be quickly and effectively available.

The purpose of mediation is to help people in conflict with each other to find the best versions of themselves so that they can sort it out in the best ways for them. Mostly we manage and when we don’t help our parties to find a settlement, we still often help them to gain more clarity about what the issues are and to make some progress.

That’s the best reason I can think of for giving it a try.

And, for the record, it’s almost always worth the effort of trying.
 

For more information on Barbara McCulloch CLICK HERE and to appoint Barbara as a Mediator contact us at the FDR Centre on 0508 FDR CENTRE