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Looking for an alternative dispute resolution

November 2017

Why mediation works

Despite all that can be done to prevent them – disputes happen.

There is not a life out there without conflict…..of some sort.  We’ve all had to contend with it, even the peacemakers amongst us.  Conflict is a normal part of the human experience and with the world today being what it is, this is unlikely to change anytime soon.  So, whilst conflict cannot be eradicated, it can be managed in a way that facilitates its resolution rather than prolonging a dispute or promoting further conflict.

We know that relationships breakdown leading to separation/ divorce is high on the ‘stress scale’ of human experience.  We also know that humans have only a limited range of responses to stresses; we fight, we run away, we freeze or we faint.  In the main, we have not real control over these responses.  The thing is, our human brains hasn’t had a firmware update for a few millennia and consequently our response to any perceived ‘threat’ is almost always along one of these lines – to come out fighting or retreat.

When people find themselves in a divorce situation (especially one that they did not want, did not look for and certainly did not see coming), this tends to be experienced as an extreme threat.  It is a threat to their security, family life and their ‘norm’.  The relationship they had thought would be a safe haven for ever has suddenly been pulled out from under their feet and therefore it is not surprising the response to this ‘threat’ is fear, anger, shock and the desire to either fight or flee.

Strong emotions tend to switch off rational thinking, literally.  We know the brain can be hijacked by stress and threat and the overriding need for ‘safety’ obscures and blocks rationality and creativity, often leading to tunnel vision.  When this happens we become incapable of seeing the “other side’s” point of view.  Knowing this, it is easy to see how, at times, the more traditional legal or litigation process can impact the functioning of the brain.  So what possible alternatives do the divorcing public have that can help to reduce all of the above?

Why and how mediation works

Mediators recognise that the high emotions expressed are a symptom of the stress response to threat.  By acknowledging unmet needs, the skilled mediator can reduce high emotional temperatures that block rational thinking.

The catalyst for resolution is often an optimism and curiosity a mediator might demonstrate, to help clients look beyond these normal responses and work instead on creating a new landscape for their future. Mediators are facilitators, not problem solvers and are not there to tell clients what to do. They are there, however, to encourage discussion, to offer options and ideas to allow clients to come up with solutions themselves.

Whilst mediation may not be the best forum in every case, it is the role of the family solicitor to explore this medium and encourage parties to adopt this process in place of litigation, which by its very nature can cause further conflict notwithstanding increased costs and delay.

Matt Clemence

Matthew Clemence

Associate

e mclemence@prettys.co.uk

t 01473 298337

 

 

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