Peeling away the layers
moving from adversarial to mediated outcomes
When I was studying at university fifty years ago, I learned about the ‘laws’ of science, the ‘laws’ of mathematics and the crafted laws of society. It was these laws of society in which I went on to gain an undergraduate degree.
I came to understand that the physical and numerical laws have resulted from our attempt to gain an understanding about those things we must live with or perish. That growing understanding and our evolving ability to codify it has led to our increasing ability to bend the world to our perceived benefit. Whether that is a good thing or not is the subject of musings elsewhere.
It is the laws we create to govern our personal and interpersonal behaviour that interest me here.
Perhaps the simplest human law, and one of the oldest, is ‘treat others as you would want to be treated by them’. This law also has the widest acceptance across the diverse societies in which humans live. It is simple and is easily understood. Most other laws of exhortation and prohibition rest on this principle.
Laws specifically against killing, stealing, hitting, abusing and spitting have become necessary because people interpret the simple, basic law in so many different, sometimes conflicting ways.
There are also more technical laws that govern how we drive cars, make agreements, buy and sell land and goods, support society through taxes and how we entertain ourselves through activities and substances.
In those societies that base their legal systems on the English model, questions of breaches of the law and of interpersonal disagreement are most frequently resolved through conflict, in law courts, with an umpire — judge — applying the rules of engagement and, usually, deciding between winner and loser. The conflict can be between criminal prosecutor and defendant or between two people who disagree about how late someone can play loud music; or about the true meaning of a comma in a contract.
In the adversarial model of conflict resolution involving individuals or corporations or both, the conflict continues until one or the other is declared the winner. Often, the winner takes all and both parties walk away bloodied. In many cases both the winner and the loser walk away dissatisfied with the result.
I saw this dissatisfaction, along with frustration, from the very start of my law practice. In those days, in Australia, marriage disputes were a state matter and often played out in the lower courts. The lawyers on both sides usually would not allow their clients to speak with each other, which made the rifts impossible to heal. I would sometimes see a possibility for such healing and I was occasionally successful in convincing the lawyer on ‘the other side’ of this. The resulting outcome was often satisfying to all who were involved.
Matrimonial law is now a federal concern and there is a dedicated Family Law Court. The manner of dealing with issues has evolved to reduce the adversarial proceedings in favour of counselling and mediation where appropriate and possible.
This move towards mediation of disputes has found its way into almost all areas of law with an increasing number of courts and tribunals mandating that parties mediate before continuing their fight in front of the presiding umpire.
My years of training in and practising psychotherapy has given me an extra insight into what motivates people to think, feel and act in certain ways. I understand that people often act as they do because they believe it will give them the result they are after. However, because of the chosen path and the dressing up of a case to present in court, it can lead to an unsought-for outcome and to dissatisfaction.
When conflicting parties agree to mediate their disagreement, they enter into a process that allows them to be truer to themselves, rather than have to fit everything, including their behaviour, into a gladiatorial arena. Each person involved has the opportunity to express what is important to them and to hear what is important to the other. It allows a weighing up on each side of the issues and possible outcomes. Often this leads to outcomes that no-one had thought of or anticipated and that allow all involved to get as close as possible to achieving a result they can feel good about.
The mediator applies his or her skills and experience to help each person identify what is important to them and to peel away the layers that they have previously added to their case in order to dress it up for the adversarial system to deal with. The mediator creates an environment in which it is safe for the parties to peel away those layers.
[first published on DSMediation.com.au]