Mediation is not always the right option

 

Written by Denise Evans

Mediation achieves great things for many people but it is not always the best option.

Sunday night’s finale of the television series Broadchurch[1] highlighted a potential for harm in resolving family breakdown issues through mediation.

The finale of the television series revealed that the perpetrator of multiple rapes was heavily involved in using and distributing pornography. His “confession” was chilling as he talked about the feeling of power he had when setting up and committing the rapes. Equally chilling was the way he manipulated others to participate in his twisted and sadistic behaviour. He appeared to have no understanding of his behaviour or the harm that he had caused.

While this Broadchurch case was fictional, safety concerns are a very real factor in deciding whether a case is suitable for mediation.

Along with concerns about family violence, drug and alcohol use, the use of pornography by one party is sometimes raised as a concern about possible care arrangements for children.

The FairWay Family Dispute Resolution process starts with a triage system where each of the parties are asked questions by a Resolution Coordinator to identify any possible concerns for the safety or wellbeing of the parties, child or children. If there are concerns, the Resolution Coordinator refers the case to a Family Dispute Resolution mediator who will look at the case, talk to the people and make a determination about whether or not the case is suitable for mediation. Even after a decision is made that a case is suitable for mediation, the mediator is required by the Family Dispute Resolution Act to determine on an ongoing basis whether a case remains suitable for mediation. 

Yes, there is potential that a party or both parties could lie to the mediator and the mediator will be none the wiser. All parties to the mediation agree that they will mediate in good faith and at the heart of good faith is honesty.  

However, in dishonesty there lies a serious risk of harm especially when the behaviour has the potential for harm to others. A significant challenge to this process is the parties understanding of themselves and that the potential for dishonesty, either deliberate or in circumstances when they lack insight, can derail the whole process.

World renowned mediator and author Ken Cloke talks about the issues that arise “when individuals…are able to lie without detection”. He says that the problem is not simply with their dishonesty, but with “our desire to believe their story because we want it to be true.”[2]

This is an important STOP point for a mediator especially a mediator who really believes that mediation is the best possible solution for any case. Mediators must know themselves and be prepared to press parties and question parties’ assumptions both about the story they are telling about themselves and about the other person.

Cloke says that “everyone in conflict lies in the sense of failing to tell the whole truth and leaving out the disagreeable parts. He says that “What is of greater concern are the untestable assertions, the intentional half-truths, the fictions on which critical reliance must be placed.”

FairWay has set a bench mark for our Family Dispute Resolution (FDR) service. Although not required by the Family Dispute Resolution Act, FairWay FDR providers are required to place the child at the heart of the mediation and through the mediation process assist the parents to make arrangements that meet the child’s needs. FairWay has also developed a robust process which requires FDR providers and our Resolution Coordinators who conduct triage to notify Oranga Tamariki if they have concerns about the safety of a child.

Cloke says “in nearly every conflict, trust is broken, forcing conflicting parties to corroborate the validity of possible misrepresentations, perhaps by using witnesses, documents, outside experts, attorneys or investigators. But where fundamental pervasive dishonesties are not apparent and cannot be detected, where the lies are so thorough and believable they are the perfect shape of truth, neither conflict resolution nor litigation can produce a fair result.”

Parties may be afraid to raise or discuss serious concerns with a mediator. This is why mediators working with families need a lot more training and experience than a simple mediation course. Dishonesty will inevitably mean that any agreement will not endure. 

The FDR Provider must have the skill and experience to treat dishonesty as an excuse to ask more questions not just to ascertain the truth, but for the purpose of getting more information and more understanding of what is happening in that person’s world. Equally important is for the parties to have the opportunity to understand how their behaviour impacts on other people. In a case like the television series of Broadchurch, where the person has no ability to understand how their behaviour impacts others, there is a serious risk of harm and mediation will not be appropriate.

Justice Winkelman in her speech to the AMINZ Conference in 2011[3] made the point that mediation is no substitute for civil justice and nowhere is that more true than in family situations. Often there are very serious underlying issues which may be at least in part causative of the family breakdown. Often there are concerns about one parties behaviour whether that be about the use of pornography or some other behaviour such as addiction to alcohol or drugs that is part of the situation faced by the parties. Whenever these types of issues are raised by any party who has been referred to or who wants to attend mediation, the mediator must not be afraid to find out more and in doing so uncover the possibility that mediation is not a suitable option.

 

 


[1] New Zealand TV One 23 April 2017.

[2] Cloke K Mediating Dangerously : The frontiers of conflict resolution, Jossey Bass, 2001
 pp69-70.

[3] ADR and the Civil Justice System Winkelmann CJ Retrieved from the world wide web 23 April 2017 https://www.courtsofnz.govt.nz/