Mediation and suitability: What’s the answer?

At The Mediation Space we found ourselves questioning our approach to clients’ suitability for mediation. We were aware we found it hard to turn people away if they wanted to use our service. And to know how best to act if, once underway, we started to have doubts as to whether mediation was suitable for the couple. We grappled with how much flexibility to allow with dates and how to identify when this was a genuine logistical matter as opposed to an acting out which raised a question of suitability.

So we decided to do some research, not on a scientific basis but rather to obtain some general pointers as to how our colleagues approached these issues. We sent a mini-survey to 15 colleagues (all experienced mediators). Ten responded.

The questions were:

1. What has your experience taught you about assessing suitability?
2. How often do you decide that a couple is not suitable after a Mediation Information Assessment Meeting? Do you find it difficult to reach that decision and why?
3. How do you manage your clients’ difficult behaviour in co-operating with the mediation process such as agreeing dates or providing information? How does it form part of your ongoing suitability assessment?

We would like to start with quoting one contributor at length as she provides a helpful context to our enquiry:

“My experience has taught me that the criteria for assessing suitability have changed. When I first trained as a mediator in 1997, the ‘model’ adopted was for the parties to meet with the mediator in person and without legal representation. Where there were allegations of domestic abuse, this potentially caused a very unsafe environment, both for the couple and, possibly, also the mediator. If there was any suggestion of domestic violence it was likely that mediation would be considered ‘unsuitable’. The landscape has, however, changed significantly. As the Family Procedure Rules have changed to encourage and support non-court dispute resolution, it is, in my view, important for mediators to ‘pause’ and consider exactly what ‘suitability’ means.”

This reflected both our wish to expand our thinking about the attributes required for mediation and the point made by contributors that there had been an expansion of the models of mediation which may have broadened the class of clients who are suitable.

What has your experience taught you about assessing suitability?

The focus of the responses fell broadly into the following categories:

• Easy/ difficult – Experience taught some contributors that they found assessment easy. One said: “I didn’t find it difficult to make the decision; it’s my job”. Another said: “When potential clients call me to find out about the process, it is usually fairly obvious when a case is not suitable for mediation. … These cases are strikingly different from the majority of new enquiries I receive… so it is not difficult to make this decision”. But others found assessment difficult. With refreshing honesty, one said he had learned: “that I am not very good at it. My default is to accept people in for mediation. Later on I worry about what I seem to have missed.” He wondered “whether assessment is realistic for the mid-skilled professional”. Another said: “It is hard to assess suitability. I used to think that everyone could be suitable, but no longer think that.”
• Thorough screening – The importance of obtaining the completed preliminary form and then asking detailed questions.
• Meeting in person – Assessment should not be a paper exercise. The final determination of suitability should be reserved until after meeting.
• Clarity – The most important thing in relation to suitability is to be clear about what mediation involves, focusing on the principles of mediation and the qualities needed to mediate. One contributor pointed out that clients often lack understanding about what mediation is.
• Use of literature – One contributor has two books she uses with clients in the assessment process.
• Things change – The dynamic of the relationship is often only revealed when you get the couple together in the mediation process. In the MIAM they present themselves as the reasonable one, and the other as difficult. This is to be expected, so in itself it is not challenging.
• Timing – Interestingly, only one contributor talked about timing, observing it is often too early for couples to mediate.
• Safety and abuse of power – This subject was talked about most frequently. Mediation must not ignore, perpetuate or mirror abuse. “If keeping the process going is enabling the abuse, the process must come to an end.” Two contributors quoted the phrase: “do no harm”.

This raised an interesting question as to what was harmful. One said: “Not taking people into mediation might do more harm than accepting them. The court environment is a very ‘unsuitable’ place and the court system can itself become a weapon of abuse where domestic abuse is already prevalent.”

Conversely, taking a couple into mediation might perpetuate abuse: “Some (in my view abused) clients may beg for mediation – they want to keep it amicable. I have to be strong and point out that the only way they will appease the abuser is to capitulate on everything – that’s not amicable, that’s just more abuse.” Another pointed out: “there is a lot of expectation from solicitors” and “it might be harmful for people if they are pressured to mediate. They may already be feeling unsuitable as a parent or partner.”

It was also noted that abusive behaviour might not be dangerous in physical terms, or risk of emotional harm, but in getting an unreliable outcome because the intimidated/bullied party might make an unwise decision just to stop the experience.

(a) How often do you decide that a couple are not suitable after an information and assessment meeting?

There was a striking consistency in the answer to this question:

“It has only happened once.”

“Very infrequently. I think only twice in my career have I met someone in an intake session who made me feel completely uncomfortable.”

“Rarely”

“Only a handful of times, when one or both want to proceed.”

“Not recorded but about 20% of the time.”

“Relatively rare, and when it happens it is usually about safety concerns.”

“Only in about 5% or less of our intakes (but in about 50% of cases we have a planning meeting to discuss obstacles to suitability and how to avoid them).”

“I don’t turn that many away but mediation was never a process for high-conflict individuals. I would not take people who can’t trust, communicate or where there is no goodwill. I ask open questions to establish the above.”

It is interesting to know what to make of this. Are most people suitable for mediation provided the mediation is well managed? Or are some couples not very suitable but more suitable for mediation than alternative options? Do we accept people we shouldn’t because we omnipotently think we can work with everyone, or because we impotently feel unable to say no?

(b) Do you find it difficult to reach that decision and why?

Most contributors found it difficult to assess a couple as unsuitable, even if they knew it was the right decision. Some contributors “find it difficult to say no when they know, as the clients may not, that the alternatives to mediation will cause them even more problems”. Several contributors said it was hard to turn people away because they wanted the process to work and to be able to help. One worried about the reaction of the couple to being turned away. Another said: “mediators find it hard to say no because it is a rejection”. Several contributors found it easier to assess a couple as unsuitable as they became more experienced.

One contributor was particularly open about this:

“Experience has taught me that I want to be able to assess people as suitable even if logically I should be more cautious. It’s a sort of ‘saviour’ feeling. I want to be able to help the couple who have approached me, who want to place their trust in me. I make allowances (possibly excuses) for their attitudes – they are stressed, grieving, desperate to avoid court, etc. I want to give them the benefit of the doubt – and trust that if we can just begin the conversation, I can help them shift their perspectives to work constructively… but in reality that is often impossible.”

One contributor said:

“I used to find it much more difficult to decide that people weren’t suitable for mediation. Having open conversation about what mediation requires makes it easier and feels more like a mutual decision, and less like me making a judgement of them. Judgements are sometimes needed of course. I am making the decision that this won’t work. The more I do this job the more I feel able to say, ‘if this isn’t going to be useful to you, because of the way you feel/think/choose to behave, it wouldn’t be professional of me to go ahead’. We aren’t in charge of or responsible for clients; we are in charge of and responsible for giving them the information and the support they need to decide whether mediation could be of practical use to them.”

This raises the question of whether it is right to say no to a couple when they both want to mediate. Who decides whether a couple starts mediation – the clients, the mediator or a mutual decision? Just one contributor said that he didn’t find assessment difficult and rarely turned people away “as solicitors have preselected” them.

How do you manage your clients’ difficult behaviour in co-operating with the mediation process, such as agreeing dates or providing information? How does it form part of your ongoing suitability assessment?

There was unanimity that “difficult behaviour” forms part of the ongoing suitability assessment. Contributors considered that unco-operative behaviour, such as difficulty agreeing dates, providing information and respecting others’ time was often indicative of suitability. Contributors gave examples of enactments, such as the less powerful partner using dates as a way of reclaiming power, or perhaps, a more conscious act, one of the couple stopping engaging so as to be able to self-certify the mediation had broken down and begin court proceedings. One contributor said that appointments are carried out by her assistant, as a result of which there tended to be less acting out.

The assessment must be ongoing and it may only become apparent later on that a couple isn’t suitable. One contributor said the further along the process they were, the harder they found it to tell clients they weren’t suitable.

Contributors discussed a number of ways of managing “difficult behaviour” – primarily setting up the process carefully and setting boundaries.

Setting up the process

A frequent theme was trying to set up the mediation to facilitate co-operation with the process. This included:

1. Being clear about what mediation involves with reference to the principles of mediation and the Agreement to Mediate.
2. Naming any concerns about a person’s ability to work within those principles. One contributor found it useful to speak to both solicitors to ascertain any tensions of which she should be aware.
3. Considering what is the best form of mediation (in person, remote, shuttle, etc).
4. Encouraging co-operation with the mediation (or “keeping people motivated”) by highlighting the risks of other modes of dispute resolution. One contributor sets out clearly what is at stake: “Delay may suit one parent but it will never suit a child.” She focusses clients’ minds by asking “what sort of memories they want the children to have of their childhood” or explaining, usually in their intake session, that they can deal with this “the easy way or the hard way”.
5. Tailoring the process from the outset to avoid as many obstacles as possible, for example agreeing upfront a clear protocol for the mediator to intervene when the conversation strays into unhelpful areas; agreeing ground rules designed by the couple together; putting in place steps to make the process safer/more comfortable including time outs, individual check ins, signs they can give if they need a pause; separate entry/departure arrangements.

As well as considering different types of mediation at the outset, some contributors emphasised the need for flexibility to shift mode, for example to shuttle mediation, bringing lawyers into the process by way of hybrid, and taking a break to enable the couple to take individual legal advice.

Boundaries

Most contributors went to considerable lengths to understand and work through the “difficult behaviour”, for example acknowledging that stress can manifest in a number of ways, asking clients (sometimes individually) why they are behaving as they are, encouraging them to express any fears they may have or “calling out” behaviour. But there was agreement that ultimately mediators must set and adhere to boundaries. As one said: “I don’t want to be seen as a walkover and to agree dates endlessly.”

Contributors didn’t shy away from warning clients where necessary that the problematic behaviour meant the mediation may be coming to an end. One said if the date passes, she gives a further date informing the couple that if they don’t comply, she considers mediation unsuitable and ends it. Another said sometimes you need to stick to boundaries to model that to clients. She will tell clients she will not continue to mediate if the clients fail to comply with the requirements she deems necessary for the mediation to progress. She makes it clear it is the clients’ choice but she will need to end the mediation.

Conclusion

We would like to thank all the contributors for sharing their experience and thoughts with us, and we would be interested to receive any further responses.

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