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It is the Family Mediators Association Mediation Week this week, and a welcome excuse to sing the praises of the mediation process as a constructive and amicable way to resolve family issues. When looking for pearls of wisdom about how mediation can work, and what it can offer, I came across an unlikely source of inspiration in the form of a quote posted on Instagram by the England and Wasps rugby player James Haskell this week.

The quote he posted was that:

“The biggest communication problem is we don’t listen to understand. We listen to reply”.

This struck a chord with me as summing up the different mind-set needed in order to get the most out of the mediation process. If a couple, parents or spouses end up having to go to Court to resolve a family dispute, then ultimately they are running the risk of losing control over their ability to control the outcome of their dispute. Instead they are placing a decision in the hands of a judge or arbitrator. If they are willing to discuss their issues in mediation though, then the power remains in their hands to choose an outcome which can work for them both.

It is all well and good in principle having the option to control the outcome of your mediation, and potentially even reaching a position where what is settled upon goes above and beyond what a court may be able to do, but how does that happen? In my experience it comes about when individuals reach a stage in the mediation process when not only do they listen to what the other person’s view is, but they also try and understand why they hold a particular opinion and what is motivating their stance on family issues.

At a very basic level, listing to understand the other person differs from the approach to the Court process. At a final hearing your priority is putting across as strong a possible case to the judge. Do so means ensuring that you have provided a clear and considered reply to the other person’s case. Mediation inevitably has to involve compromise at some point, often by both individuals. This is not going to be found by just replying to the other’s opinion or comments.

Individuals may not necessarily enter into the mediation process at the stage where they are trying to understand the other person’s position. In fact one person may not even feel that the other person is listening at all. Many individuals come into mediation having not even spoken face to face since they separated. They will however communicate during mediation, and more often than not begin focusing on trying to understand the other person’s views and opinion as a route to finding common ground.

Discussing children issues in mediation is often a perfect example of this. Both parents’ stance in trying to settle upon the right arrangements for their children are nearly always founded upon what they feel is in their children’s best interests. It just so happens though that they disagree on what is best for their children. This does not mean that either person’s views are less justified, but it does mean that if they are going to find a solution together that works for their children, then they are going to not only have to listen to each other, but they are going to have to try and understand where they are each coming from. If they just listen to reply and put across their case, then they cannot find out where compromise may lie, or why it may be needed. If they listen in order to try to understand the motivation for each other’s stance, then it can offer a far greater insight into what each other’s priorities are for the children, and why have such strong opinions about their future.

Whether you are trying to find a solution to resolve issues between you by negotiating, mediating, collaborating, arbitrating or litigating, I would urge you to try and start the process by listening and trying to understand the other individual’s view, and why you find yourself in this position. It may just be that if you do this, you may find that you have far more common ground between you than you think.

Thomas Brownrigg

Associate Solicitor and Accredited Mediator

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