Mediation: 3 leading misconceptions

Few clients request mediation of their attorney, and few attorneys advise their clients to consider mediation.

Our clients often approach us when they feel that they have exhausted rational dialogue, and the relationship with the other party has completely broken down. A perceived “soft option” like mediation can be unattractive.

“Hierarchy of needs” psychologist Abraham Maslow famously said “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” We in the legal profession are as guilty of this as anyone. Our first thoughts turn to letters of demand, summonses and interdicts – not open, frank discussions with our client’s opponent about their needs and interests. Having been trained to sift through our clients’ instructions to identify rights and obligations, and what is actionable in law, we pay little enough attention to our own client’s deeper interests, needs and feelings.

As attorneys, we often view the emotional content of what our clients tell us as irrelevant – a hindrance in getting to the facts. After weeks, months or years of effort, we may achieve all that we led our clients to hope for, vindicating their rights and forcing the other party to discharge its duties, with costs. Yet our clients may be left with a sense of hollow victory – their real needs and interests, which we dismissed as irrelevant at the very first consultation, were not addressed.

Many attorneys and clients have had a taste of mediation through the conciliation phase of employment disputes before the CCMA or bargaining councils. We approach the conciliation hearing prepared to persuade the conciliator that we are in the right and should give less, and that the other party is in the wrong and should give more. The conciliator, in turn, with a towering pile of case files to deal with in the course of the day, has little time to uncover the real needs and interests at play. She may instead focus on sussing out the parties’ price – how much or how little money must change hands between the parties to get this matter finalised and out of the system, so that she can move onto the next matter?

While mediation is to be formally provided for within the South African court system as an optional alternative to litigation, misconceptions and mistrust abound. Yet, done well, mediation is a powerful tool for transforming disputes. In this article, we consider three leading misconceptions about mediation that may prevent people from making use of this tool.

Misconception #1: Mediation cannot succeed when the parties’ relationship and/or communication is poor.

A skilled mediator can transform the dynamic between the parties – at least for the duration of a mediation session. She is able to establish trust and rapport with both parties. She may set and gently enforce ground rules which hold the space for each participant to be treated with dignity and respect. She models constructive communication, reframing where necessary to remove the sting of unhelpful criticism and blame which hinder listening. By ensuring that each party is heard, and feels heard, the mediator de-escalates tension and prepares the ground for engagement with the real issues.

Misconception #2: A mediation is like a mini-trial. The mediator listens to both sides and decides who is right. One side wins and the other loses.

A mediation is not the same of an arbitration, or a trial. The mediator does not sit between the parties as a referee and hear evidence, and the mediator does not make binding decisions. The mediator invites the parties to tell their stories, helps them identify the real issues at stake, and facilitates a collaborative process through which the parties may be able to find solutions. Any outcome is only by agreement between the parties. The entire process is voluntary, and the parties retain control over the process.

Misconception #3: Mediation is a form of negotiation. The parties have to compromise, and at best both parties win a little and lose a little.

In negotiations, parties tend to harden their positions and engage in power games to try to get as much as possible while giving as little as possible.

A skilled mediator will assist the parties in looking above and beyond their narrow positions, and seeing the bigger picture. She will help the parties properly understand their own needs and motivations in the dispute, and the other party’s needs and motivations. Rather than inching towards a compromise in the middle ground, the mediation process can transform the parties’ understanding of the dispute, and open avenues for resolution that might otherwise not have been discovered.

A skilled mediator will facilitate a creative problem-solving process, to enable the parties to explore solutions that address both parties’ interests to the greatest extent possible. These interests often go beyond the obvious legal issues, and a more holistic and satisfying solution is possible.

With skill, time and effort, the parties may leave the mediation with an abiding sense of satisfaction, having been heard, having listened, and having taken ownership of the dispute and of its resolution. This takes place with the support and guidance of the mediator, who brings a unique and valuable skill-set to bear on the parties’ process.

Rose Attorneys offers mediation services, with a special focus on divorce mediation.

In any divorce proceedings, a dialogue facilitated by a mediator can bring matters to a quicker and more peaceful resolution than proceeding at once to issuing summons and exchanging proposals via attorneys and court documents.

Especially where a divorcing couple must co-parent in future, a mediation process can be invaluable. While litigating tends to harden positions and further damage the parties’ relationship, mediation offers the possibility of reducing tensions, and building new foundations for a constructive future co-parenting relationship.

If you are interested in more information about divorce mediation, contact Camilla Rose at camilla@roseattorneys.co.za or 074 697 2048.

 

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