Empathy in Mediation

Empathy is considered as the  “Soul of Mediation.”

A couple married for 35 years wanted to get divorced.
Wife said, “In all these three decades of marriage I have understood my husband so well. My husband has not made any effort to understand me even to the least extent. I am fed up. I want to move away from this relationship.”  

Husband said, "I have understood my wife so well. In all these years of our marriage I have never failed to understand her. But she does not bother to understand me. This pains me a lot.” What has happened between the spouses ? Each is claiming that  each has understood the other but the other has failed. The relationship failed because each has tried to understand the other in his/her own way but not as the other person was  expecting  to be understood.  There was lack of empathy in their relationship.

“Empathy is understanding the other person, as that person wants to be understood."  Empathy strengthens relationships. It helps one to connect with the other. There runs an invisible umbilical chord between the two when empathy governs the field of communication. Relationships cannot be nourished and cherished in the absence of empathy. Empathy makes one to understand what the other has not spoken. Empathy is said to be a power of feeling. What gives power to  this power? The humility and humbleness to offer oneself to understand the other person as that person wants to be understood  gives the power. The  preparedness to understand  is the first step. Setting an agenda and setting the atmosphere are two wonderful communication skills often used by mediators. With these two skills in hand mediator sets the tone.   

In the context of mediation, the difficult question  to answer is “Is it enough if the mediator alone is empathetic”?    Let us try to get the  answer through a hypothetical case study:

Case study: Couple were married for 14 years. In the second year of their marriage a son was born to them, who died at the age of  9.  Husband  wanted  divorce on the ground of cruelty. Only ground  of cruelty alleged was  that wife avoided  physical relationship with him. The wife admitted in the joint session that she was not co operating  for physical relationship and that she hated to sleep with her husband.   In caucus Mediator leaned forward, bent a little bit, and asked her  in a slow and soothing  voice demonstrating  the preparedness to listen to the wife “I can feel that something is deeply troubling you.  If you don’t  mind sharing with me  can you help me understand what it is?  Recognizing that there was some one prepared to  listen to her and understand her the wife started pouring out.  After listening to her for  a few minutes, the mediator asked her “Do you  mind  telling  everything to me from the beginning  in the presence of your  husband?" Both husband and wife agreed for a joint  session. A congenial  atmosphere  to facilitate weave an empathic connection between the spouses was set by the mediator. 

This was the heart  touching narrative by the wife:

“When my son was 4 year old this man  went abroad. He was tough about money. He weighed  everything  in terms of money. He was mad after accumulation of wealth. He used to visit us  twice in a year .  I was taking  care of the family.  From admitting the child to school and  attending to all his needs it was only me. My husband  was a great athlete. Some how my son developed keen interest in football .He  was  chosen as a champion for  the under  10 football State level team.  He was supposed to go up to national and international level. Every time he won trophies I sent photos to my husband. Not even one message of happiness, or encouragement was passed on to my son  from this man. My son wanted a stud  and  jerkins from US.  This man did not send.  I got those from some one else and lied to my son that “his father sent them."  

One day my son came home and complained of pain in the leg. I gave him some pain killers.  Pain subsided.  Next week again he had severe pain.  I took him to hospital. Off and on his pain continued. He had to miss his practice.  Doctors advised to have some tests done.  When he was advised not to move I made him sit on the wheel chair.  7 ½ year old boy was  cheering  when I was pushing the wheel chair. I was  broken.  He did not understand what it meant to sit on the wheel chair. He insisted that we take a photo.  Some one took the photo for us. “ Madam ,this is the photo.  A worried mother  pushing the wheel chair with a   cheerful son ”.  I was given his  medical report . Doctors said “it is cancer”!!.

I did not tell my son about it.  Every week he would ask me” when  can he  go to field and play  football?.  He had the foot ball and studs on his bed.  He asked me more than hundred times, “ When will daddy come and get me the  best medicine so that I can play soon”.  Madam, this daddy never bothered to come.  Day by day his situation got worsened. It was his birthday. He wanted all his friends to come. He thought his father would come with best doctors and best gifts. That morning he became unconscious.  In the hospital he asked me “ Has daddy come, have my friends come, when should I cut the cake?  Again he became unconscious. Day by day his belly started bloating as though he had three babies inside. I was repeatedly calling this man. Every time he said I am busy in meeting. I will call later”. That “later” never  happened. My son died. This man did not come  even for the funeral.  After a month he came, hugged me and said “ Don’t worry,  I will give you  another child”.

She spread more than 200 heart touching photos of her son  taken at every stage. Each photo was passed on by the mediator to the husband, from whose eyes tears were rolling down .  Wife asked one last question” Madam, if you were to be in my position  would you go and sleep with this person again, would you have sex with him?”. Husband could not control his emotions.  It was as though some thing  was churning within his stomach. He was deeply troubled. He sobbed -cried- rolled on the floor. He was uncontrollable.

The atmosphere was charged with Empathy. It was not just the Mediator who understood the wife as she wanted her to be understood but her husband also understood her as his wife expected and needed to be understood. In trembling voice husband said to wife, “I don’t want to say sorry. I cannot even apologize because I don’t even deserve to be forgiven, Please accept my sincere thanks you have been a father and mother to our child."

Suddenly, the wife hugged the husband. Both of them cried, and sat silently for more than an hour without uttering a single word but occasionally looking at each other. Even the mediator did not speak a word. There  was only silence which had its powerful voice reaching to the heart of one from the other. That atmosphere of silence conveyed many messages to both. Suddenly both stood up. Surprisingly they held each other’s hand and said in a single voice, “We will live together as a couple”.

Empathy triumphed.

Role of Empathy in Mediation:

In mediation, demonstration of  empathy by a mediator stands on one foot. But bringing empathic connection  between the disputing parties stands on a different pedestal. Mediator facilitates the parties to stay on a  level playing field where  there are  no instructions and directions by one to another. There are only feelings wanting to be reached out to the other, and feelings wanting to be understood. Once this powerful connection is  developed  there remains nothing more to be done. There will no more be two sets of parties facing each other. There will be only  one set of parties. Each one will be sitting next to the other understanding that it is their problem, and it needs to be resolved.   

SKILLS  that  a Mediator can use:

1. Setting an agenda  (How and when to bring empathic connection between the parties).
    
2. Setting an atmosphere.
    
3. Framing and asking strategic question which brings motion  towards solution.
    
4. “SILENCE”

                       

Sarathi Susheela

S.Susheela is a designated Senior Counsel practicing in the High Court of Karnataka at Bangalore. She has done her Masters in Sociology, a Post Graduate Diploma in Industrial Relations and Personal Management and Post Graduate Diploma in Alternate Dispute Resolution from ICADR. She has been practicing for the last 33… MORE >