Diversity matters! For mediation to develop in fresh and vibrant ways, we need to think and act creatively. Some of the best ideas come from making connections – for example, between mediation, sciences and the arts – and through using these connections in practice. Bernie Mayer’s article in the Mediation Futures series 1 struck chords with me, with its references to complexity science, chaos and the importance of adapting the ways we mediate to meet diverse needs, instead of expecting participants to fit in with the particular way we choose to mediate. Complexity theory is rooted in chaos theory, in which chaos is viewed as extremely complex information, rather than as an absence of order. Complex systems differ from simple ones in having the capacity to create something new – a new order and new structures – through developing different forms of interaction and relationship. Families are complex. To mediate in complex family systems with varying levels of conflict, mediators need to be able to combine different elements of theory and practice in eclectic ways. Ecosystemic mediation provides an overarching theoretical framework with the flexibility to construct different models of working, without considering one approach ‘better’ than another.
Rapoport, a systems theorist, considers that ‘the critical issue of peace and the need to convert conflict to co-operation demand incorporation of second order learning in social systems, and the most effective way to produce social learning is through a participative design process.’ 2 In an ecosystemic framework, mediators combine different elements in tailor-made designs that fit the needs of participants, rather than marketing an off-the-peg model that is not a good fit for the family concerned. This flexible approach is needed especially in cross-cultural and international mediation, where different cultural, legal and family systems and their interactions need to be understood and taken into account. There may be intergenerational issues involving members of extended families. Insome cultures and communities, family conflicts cannot be resolved effectively without appreciating traditional values, religious beliefs and the influence of senior family members and religious leaders. It is important to clarify who needs to take or approve decisions and whether third parties need to be involved, directly or indirectly. Cross-cultural and international mediators need to be ‘multi-partial’, open to learning about the values and traditions of other cultures.
Some contributors to the Mediation Futures Project have suggested that mediators tend to work with the same type of clients, often from upper management and middle class backgrounds. Mediation should be accessible to families from widely diverse backgrounds and cultures, rather than catering primarily for divorcing couples with high incomes and significant assets. My colleague, Henry Brown 3 , believes family mediators in Britain are failing to develop creative approaches, for example in combining separate and joint meetings. It may be true that divorce mediation on financial issues tends to follow a traditional pattern and risks becoming regimented and routine. However, family mediation in Britain and in many other European countries is not confined to divorce mediation with couples paying privately. Many mediators work flexibly on a much wider range of family matters. In England and Wales, nationally accredited family mediators who have a contract with the Legal Aid Authority provide publicly funded mediation to low-income families, as well as mediating privately. Individuals whose income and assets (if they have any assets) fall below a certain level can attend information meetings and take part in mediation free of charge. Applicants to the family court are now required (with some categories of exemption) to attend an information and assessment meeting with an accredited family mediator to receive information and consider non-court options, including mediation and collaborative law, before they can file an application to the family court. When both parties accept the offer of a separate information and assessment meeting to consider possible ways forward, the great majority choose to take part in mediation. Follow-up studies show that the majority reach decisions jointly through mediation and avoid getting caught up in lengthy and often very costly contested proceedings, (legal aid is no longer available for legal advice and representation by lawyers, except in some limited circumstances). Early intervention, as Nina Meierding points out 4 , can prevent the escalation of conflict and helps child-parent relationships to survive, because the adults have not become so entrenched and alienated from each other.
Public funding through legal aid enables individuals on low incomes to consider ways of resolving disputes that are not necessarily divorce-related. Grandparents may be seeking contact with grandchildren. An unmarried father who has never lived with the mother of his child may be seeking not only contact with the child and parental responsibility in legal terms, but the chance to build a relationship with the child. Some separating couples are in dispute on all issues, including arrangements for their children, maintenance and property, division of assets, debts and pension provisions. To become an accredited member of a national register, family mediators in England and Wales need to pass a Professional Competence Assessment based on a portfolio giving evidence of competence in mediating on all issues, in ways that enhance participative decision-making and ’empowerment’. Many separated parents struggle with poverty and housing problems and are vulnerable in many ways, yet they have emotional strengths and capacities that can be harnessed, especially if they receive support and encouragement before disputes becomes entrenched. If there are child welfare concerns, parents can face risks of their children being taken away and placed in the care of the local council. Allegations of children at risk of harm must be reported and investigated by child protection services, but not all allegations are found to have a factual basis. Some parents who are hurt and angry accuse their ex-partner of being a harmful or neglectful parent, without any actual evidence to support their accusations. An experienced mediator with training in child protection work may help such parents to disentangle separation-related issues from working together as parents to meet their children’s needs. The support of other family members may need to be enlisted as well. Those holding parental responsibility need to be actively involved in designing and developing their mediation process, stage by stage. Caucusing may be needed in conjunction with joint meetings. The adjustments needed to restore or rebuild dialogue and enable joint decision-making cannot be achieved in brief, court-directed interventions.
Ecosystemic mediation makes connections between private family decision-making and public systems of care and control. In a sense, family mediators mediate not only between family members but also between private family decision-making and public systems of justice and child protection. We work at the interface between these systems, assisting family members to communicate and collaborate more effectively and thus avoid the unnecessary involvement of public systems. When the judicial system needs to be involved – for example, when a court order with consent is needed to give legal force to a divorce settlement or child arrangements,, the mediator can facilitate a smooth conjunction so that the cogs of different wheels can turn, without one set of wheels impeding the other. Mediators in this country do not work on the court’s behalf in making evaluations and reports to the court: mediators are independent and the process of mediation is confidential and legally privileged (with possible exceptions). All those who work in the family justice system need to understand the complementary roles and responsibilities of judges, lawyers, social workers and mediators. We need to understand the boundaries between these roles and the ways in which systems function and interact with each other. A ‘participative design process’ may need to include children and young people directly, as well as their parents or carers. Simon Hughes, British Minister of State for Justice and Civil Liberties, said in a speech last year to the Family Justice Young People’s Board ‘Voice of the Child’ Conference that children and young people aged ten and over (and also younger children, if appropriate) should have a range of opportunities to express their views and offer suggestions. The Minister set up a Voice of the Child Advisory Group to make recommendations on child-inclusive practice, especially on how to have helpful conversations with children and young people in, or alongside, a process of family mediation. The Final Report of the Voice of the Child Advisory Group was published on 26 March 2015 with a supportive Response from the Minister for Justice, Simon Hughes.
Bernie Mayer suggests that we need to use conceptual and analytic skills, as well as emotional ones. My colleague, Neil Robinson and I organise biennial weekends on Mediation, Science and the Arts. Last October, in the fifth weekend in the series, we took the ‘mediation crucible’ as a metaphor for ‘fusing emotion and reason in the reworking of relationships in mediation’. With a brass crucible in our midst, a multi-disciplinary group, including a neuroscientist, a psychiatrist, lawyers, mediators and trainers from eight countries and different professional backgrounds considered how emotion and reason can be balanced and blended in mediation. Medieval alchemists attempted to transmute base metals into gold by heating them in a crucible. They regarded fire not as a destroying element, but as a transforming element. ‘Fire is a process of transformation and change, by which material elements are rejoined into new combinations’. 5 Family mediation is like a crucible in which different, often very hot, elements and emotions are blended and fused in new combinations. Alchemists were unable to transmute base elements into gold. Mediators may be equally unable to transmute the ‘base elements’ of anger and bitterness into the pure gold of harmony. But degrees of transformation can take place in mediation. The first law of thermodynamics states that when heat is transformed into another form of energy, energy is neither created nor destroyed. It changes its form. In mediation, the energy of conflict can be transformed into the energy of co-operation.
To contain and manage this process, mediators need to fuse conceptual and analytic skills with emotional understanding and empathy. Dr Arnon Bentovim wrote in relation to jazz and family therapy that ‘practitioners have to respond to the moment, the atmosphere, the emotional climate, and be aware of the rhythm, the melodies and counter melodies, variations and familiar cadences. They need to forget technique to create genuine dialogue, to create a transformative musical experience or to transform the lives of the families we work with.’ 6 In a similar way, mediators need to respond to the moment, the atmosphere and the emotional climate and be aware of ‘melodies and counter melodies’. While adhering to the core principles of mediation, we need to integrate emotion with reason in reconnecting fragmented systems and helping families to manage change.
There is a concept in biology called the Red Queen Effect, named after the Red Queen in Lewis Carroll’s Through the Looking Glass. The Red Queen tells Alice : ‘Now here, you see, it takes all the running you can do to stay in the same place.’ In the evolution of mediation, the Red Queen effect means that we need to run hard, not just to survive, but to meet new challenges and respond to a greater diversity of needs. We cannot just stay in the same place. As Ken Cloke says 7 , there are limits to what mediation can achieve, but to find the limits we need to push out the boundaries, expanding both our thinking and our familiar (in both senses) ways of working.
Lisa Parkinson, M.A., mediator, trainer and consultant, a Vice-President of the Family Mediators Association in England and Wales, has been involved in developing family mediation since the mid 70s. Still in practice as a family mediator after nearly 40 years! Her book on Family Mediation (3rd edition, 2014, Family Law) is also available in six foreign language editions.
2 Rapoport A. The Origins of Violence (Paragon House 1989) at p. 442, emphasis added
3 Henry Brown Musings on Mediators, Pizza-Makers and Humanity mediate.com January 2015
4 Nina Meierding Looking to the Future: Is There Still a Place for Proactive Early Intervention Mediation in our Changing Field? mediation.com January 2015
5 Bronowski The Ascent of Man (BBC, 1973), p 142.
6 Bentovim,Arnon Jazz and family therapy – my journey Context, the magazine for family therapy and systemic practice, June 2011 at p. 33
7 Ken Cloke The Future of Mediation – Toward a Conflict Revolution mediate.com January 2015