Rights, interests, power

As all practitioners know, every case we work with is different. We learn something from each and we must be alive to the particular dynamic that pervades every situation we deal with. Some of my recent projects and training have been focusing my mind more than ever on this, as I consider how we as a “village” of multi-disciplinary support do the best for those we work with. Whatever the individual circumstances, there are two absolute truths for every case we work with:

• The clients we work with are going to bed at night and waking up in the morning with their worries around where things will end up – their first thought in the morning, their last at night.
• There are three factors at play that will decide how well issues are reconciled. This indivisible trio that must all be understood by participants and those working with them are: rights, interests and power. They’re like three legs of a stool, all equally important for balance.

Let’s start with power. Safeguarding is vital in the work of a family mediator and a recent training course has been helpful in furthering my focus on this, using the new Safeguarding Tool released by the Family Mediation Council. It was developed to give greater support and clarity for practitioners in evaluating whether an imbalance of power can be managed in mediation with awareness and adaptations, or whether mediation is not appropriate and specialist referrals are required. Power is about the internal dynamics of a relationship, often hidden and often not understood by those in it.

Rights provide the externally-set fair parameters of where a mediated outcome should land. If someone is unaware of their rights they’re at risk of losing or giving away something they don’t know they are entitled to. A knowledge gap on rights can overlap with a power imbalance. Informed decisions can only be made when rights are understood, but leaning too rigidly into rights risks closing minds and that is where disputes risk getting stuck, framed as a binary contest of who is right and who is wrong.

Interests are where the real power lies in mediation in finding a way out of impasse. These are the often-unspoken needs, fears and priorities that sit behind positions.

If we only focus on interests, rights can be overlooked. If we lean too strongly into rights, interests risk being forgotten. And rights and interests may be lost with an unseen power imbalance.

Being alive to all three is the key to durable and fair outcomes.

There’s the old phrase – it takes a village to raise a child. I think it’s a phrase that also lends itself well to supporting people well through all pivotal moments in life. Considering the three-legged stool provides a helpful guiding framework on how best to support clients and who to bring into the “village”, to ensure power is understood and balanced, rights are clear, and interests are evaluated and explored in a protected space with clarity.

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