The popular legal TV show Fisk features a memorable exchange in season two. Roz has become disenchanted with legal work and increasingly passionate about the benefits of mediation. Her enthusiasm leads to the comment above, met with Helen’s characteristically dry response. But are either of these observations accurate?
In family law, mediation involves an independent third party (the mediator) who works with those in dispute to reach a mutually acceptable outcome. The mediator’s role is not to act as a judge or to advise either individual but to help clarify issues and priorities, identify potential options for resolving the dispute and support the individuals in exploring these options to find a constructive way forward.
The similarities between family mediation and jazz lie in their shared reliance on improvisation, flexibility, timing and perhaps the fact that both can be underrated.
Improvisation
Mediation inevitably involves an element of improvisation because the mediator cannot predict how conversations will unfold or what might be raised. The mediator must react to unexpected developments while staying within the mediation framework and structure. Thorough training and deep preparation are vital for this. Just as an experienced musician can respond more effectively to musical developments, a well-trained mediator is better equipped to adapt to the needs of the individuals involved.
Flexibility
Mediation is an inherently flexible process. What works for one couple may not suit another. In Scotland, family mediation often involves initial individual meetings with each person followed by a series of joint meetings, usually lasting around 90 minutes, but that is not the only way in which family mediation can be conducted. The couple may prefer online meetings rather than in person sessions. Shuttle mediation can assist when individuals cannot be in the same room. Additional individual meetings or short breakout sessions may be helpful for some. Child inclusive mediation can allow older children to express their views directly to the mediator. In certain cases, mediation with lawyers present can also be considered.
Flexibility is equally important when thinking about outcomes. Lawyers often take a solution focussed approach and may enter mediation believing they already know the correct conclusion. When lawyers act as mediators a key shift is learning to step back from this mind-set. The individuals involved may reach an outcome that looks very different from what a lawyer might anticipate and that outcome may be the most appropriate for them.
Timing
Timing can play a significant role in the effectiveness of a mediation process. There can be value in attempting mediation at any stage of a dispute. However, it can be less effective when the separation is very recent, and emotions remain extremely raw or when the conflict has progressed deeply into the court process and become heavily entrenched. The most effective point often lies somewhere between these two stages although this is not always possible.
Underrated?
Is it true that no one really likes mediation? It is unlikely that many individuals actively enjoy the process. It can be demanding and emotionally challenging. However, it is often far more beneficial than pursuing a lengthy and difficult court process where a decision would ultimately be imposed by a judge. Although the use of mediation continues to grow, there is scope for it to be used more widely and in a broader range of disputes.
MFMac's Family Law team have two accredited mediators in relation to family law disputes, Lucia Clark and Karen Wylie. They can support and advise individuals going through the mediation process. If you wish to discuss how we can assist you, please contact us.
