“Mediators offer a gift of hope ”- Anonymous
In most cases, when faced with the mediation option, what most people really want to ask the mediator goes something like this:
How are you going to help us to avoid court and sort out the children arrangements and finances for ourselves when we can’t even speak to each other and we certainly don’t trust each other but we really do not want to spend £1000’s in legal fees and go to court, if we can help it!
In this section and supporting video we focus on some key mediation skills used by the mediator, during the 5 main stages of mediation.
In doing this our hope is to provide you with a picture, structure and broad understanding of how it all works and hopefully the confidence, interest and motivation, at this early stage, to find out more.
Let us start with the mediator’s main aim which is to do everything in their power and within the remit of their role as mediator to positively motivate, empower, enable and support you and your former partner to work together to reach your own mediated outcomes.
The important words here are; ‘Your own mediated outcomes’ because so many separating couples seem to find it hard to believe that this will ever be possible and sometimes hard to do which is why so many of them immediately head off to solicitors and, ultimately, end up in court.
So, what does the mediator do to help you and your former partner reach your own agreements?
The mediator must set up the mediation process very carefully.
Setting up the process
Setting up the mediation involves telephone calls and separate confidential meetings which we refer to as MIAM (mediation information and assessment meetings) and cover briefly in an earlier section to this chapter as well as in video format and in more detail in another chapter.
As you can imagine, it is not simply a case of contacting two people and asking them if they want to sit in the same room to try and sort matters out with the mediator.
How would you feel if you received a call like this, out of the blue?
There is far more skill involved.
It can take time, patience and very careful handling of a person’s perceptions, emotions and concerns before they are prepared to meet with the mediator on their own, let alone mediate.
The pre-mediation meetings with each person, often referred to as MIAMs, are used by the mediator to, among other things, assess the situation for suitability for the mediation process, ensuring that each person will feel safe and secure to express their views (and emotions) in mediation and to prepare you and your former partner, giving each person the confidence and ability to work constructively together in mediation.
They are absolutely crucial to the success of mediation and must not be rushed.
When mediation starts, the last thing the mediator wants is to have two people who feel compelled to be there, who are badly informed and ill prepared, with false expectations about what is involved, and what can be achieved.
Identifying and clarifying your priorities (values, interests and needs)- in terms of outcomes and how these are to be achieved
Identifying and helping each person to be clear in mediation about their priorities (values, interests and needs), the things of most importance to both of them, is a very important if not crucial mediation skill and stage of the mediation process.
We provide a document we call your pre-mediation questionnaire and whole Chapter about how to complete this because we believe that it is so important from the outset to help everyone identify for themselves and each other the things of most importance and meaning to themselves and each other around which you are going to construct their mediated outcomes.
For mediation to be successful you and your partner will need to feel that you have achieved enough of these things which are so important to each of you, the things that will enhance your clarity and security in the future and provide you with the confidence that yours and your children’s primary needs will be met in the future.
Simply put, the mediated outcome will need to feel ‘fair enough’ to both of you, meeting enough of your important values, needs and interest and overcoming as many of your concerns as possible, if you are to be successful in mediation.
It is not just about the practical issues involving the children, the home, pensions, income and maintenance, which are important.
The success of most mediations rest or falls on the mediator helping you and your partner to correctly identify and work with the underlying emotional and psychological drivers, shaping and influencing your thinking, approach and behaviour, in mediation.
Unless these ‘underlying’ psychological and emotional factors are identified, managed and sufficiently satisfied, mediation is unlikely to succeed.
The mediator is also skilled at managing destructive patterns of inter-relational communication and power imbalances in whatever varied forms they appear in mediation.
It is crucial that these should not be allowed to influence, define or shape the dialogue and outcomes in mediation, and it is the mediator’s job to ensure they do not.
All this takes a great deal of practice and experience.
Exploring options
Having identified yours and your partner’s priorities (values, interests and needs) as well as some of the emotional and psychological drivers of behaviour, the mediator will work to encourage you both to consider a range of views, ideas, options/outcomes/solutions for meeting these priorities, from a range of perspectives, some of which you may not have considered before coming into mediation.
Have a look at our guide for having a constructive solution focused dialogue.
It is very common for someone coming into mediation to have a fairly fixed idea about what they want out of mediation and a fixed narrative to justify this.
They may also come into mediation feeling scarred by their past experience, with a firm sense of what to expect from their former partner, much of which may be negative.
It is the mediator’s role to help the couple overcome these psychological barriers so that they are able to explore options for the future, in an open, positive, constructive, solution and value-outcome focused way.
Building towards settlement- ‘Reality testing your options’
Having helped the couple identify and broadly explore a range of options based on their main priorities, taking into account important factors, the mediator’s focus will turn to explore these options in more depth, from each person’s perspective and, of course the ‘children’s need’ perspective, testing how these might work in practice from these different perspectives, helping the couple to ensure that they will deliver what each person wants and needs them to deliver for themselves and their children.
What will each option mean for you, your former partner and the children, if you all decide to go ahead? What will be the impact, the consequences, the ‘net effect’ (if financial) of following through on these options?
Again, you may wish to have a look at our guide for having a constructive solution focused conversation in mediation.
At this stage the emphasis may be on hypothetical questions such as; If you did this or that, how might it affect each of you, and the children (multiple perspectives) and out of this stage of the process further information might be identified as being necessary in order to be able to fully test out and reality test whether one or more of the options being explored are workable.
The mediator will ensure that sufficient time is taken by you and your former partner to look at any options and ideas, from each person’s perspective and what each option might mean in practice for each person and their children.
The mediator will also ensure that each option is understood and encourage each person to listen to each other with an open curious mind, in an attempt to understand each other’s perspectives, what is important to each of them (values, interests), their thinking and the feelings about each option which are often expressed in the form of ‘concerns’.
“My concerns about this option” can often be reframed to mean, “ I am concerned about these things because they are important to me or, put another way, because this options threatens (one of my priorities) the things of importance and meaning to me”.
Concerns are often expressions of values (what is important to a person).
This is the time to be humbly (humble in the sense of accepting that other people may also have views and good ideas worth exploring) and ‘empathically’ curious, seeking to understand points of concerns and perspectives to see whether a solution evolves from an ‘empathically curious conversation’ based on value based outcomes and not to react defensively when you hear a point of view or idea which does not agree with your own or feels quite challenging to one of your values or beliefs.
This is where self-restraint and your ability to self-regulate your emotional response is so important which we write more about in other sections, so that you can maintain a respectful and dignified dialogue.
When you put forward an idea and the other person expresses a concern, rather than react, perhaps ask them to explain what it is that concerns them most about your idea or option so that you can work together, considering, discussing and exploring whether there are any ways of overcoming these concerns.
Please hold in mind that if an agreement is going to be possible it is likely to become necessary, at some point in the mediation, for you and your former partner to give up some of what you want in return for receiving the things most important to each of you, discussed in stage two of the process (reciprocity).
Experiencing a spirit of reciprocity can be a powerful positive influencer and driver for positive action and outcomes although beware the enemies (barrier beliefs) of a positive ‘reciprocal flow’ such as self entitlement, self justification, blame and judgement which create a barrier to reciprocity.
On the one hand you might recognise that the other person is willing to give up or shift on something that is important to them whilst on the other hand believe (barrier) that they are not deserving of your generosity because of how they have treated you.
With your help, the mediator has to create the environment and ‘conversation space’ that invites humble, empathic, open curiosity and reciprocity, enabling and empowering the separating couple to be future, solution and outcome focused !
Implementation of agreements
This view might be a little contentious but we believe that a significant proportion of ‘advice’ given to clients could justifiably be described as ‘information’, rather than advice, which is information a mediator is perfectly able to provide, verbally or in the form of guides or videos, like this (especially bearing in mind that many mediators are also practicing or retired solicitors).
We have two main points to make here.
First it is often difficult to predict what a Judge might decide, which is why legal advice from two lawyers, based on the same set of facts, can sometimes differs. This difference can also be exaggerated by the fact that each solicitor often sees their role as achieving the best for their client, at the expense of the other client (adversarial/competitive)
This is not to say that help and support from the ‘right’ kind of solicitor, as you go through mediation, can be very useful indeed, especially to reassure you and increase your confidence to make your own decisions in mediation, when the time comes.
Indeed, we positively encourage this and role of your solicitor as part of the ‘mediation team’. We refer to the process of forming the right team around the mediation clients as ‘Mediation Teaming’ about which we write much more more in the chapter- Solicitor supported mediation.
The other point is that there is a great deal of free and useful information available on the internet. That said please beware, much of it is confusing and some of it is inaccurate which has been one of the drivers for producing this Mediated Divorce Manual linking you to recommended sources and resources of independent information on the Website in each chapter.
The mediator has an important role in providing clear information about the law and other useful resources when needed and to do so in a clear, balanced and neutral way and discussing with the couple in mediation how this information might help them reach their own mediated outcomes.
For example, a mediator is able to explain how a judge might approach a certain topic based on established principles and cases ensuring that you and your former partner are working within ‘the shadow of the law’ .
What they cannot and must not do is give a view about the outcome you might achieve if you go to court. That would be for your solicitor to do. This might look and feel like a fine distinction but it is an important one.
Doing this in a balanced, mutual way and neutral way is where the skill lies and can be crucial to the integrity and success of the mediation process. It means that you and your former partner will hear the same information from the Mediator ( and read the same information in this Divorce Manual) and be able to ask the Mediator and each other questions about this information in the moment, in mediation, in a carefully managed way, reducing the chances of misunderstanding, misinformation, misperception and polarized thinking.
Also, recording proposals reached in mediation in a written format which is clear, comprehensive, and practical for the separating couple, as well as their lawyers, is an important aspect of mediation.
In summary,
The mediator does so many important things to motivate, enable, empower and support separating couples to reach their own agreements, during the following 5 stages:
1 Setting up the mediation process for the couple
2 Helping them identify and be clear about the things of most importance to them.
3 Helping them to explore a wide range of options for meeting these priorities from different perspectives and helping them to do so in a constructive, solution-focused and value-based outcome way.
4 Building towards agreement through a process of reality testing each option from multiple perspectives.
5 Preparing the mediated summaries so that they can be properly implemented.
There is not enough space in this section or time in the supporting video to cover everything and in any event it fair to say that no explanation can be a substitute for trying out mediation for yourselves, to see whether it can work for you.
However, we do hope that this section and video have given you food for thought and an insight into what mediators can do for you.