Mediation and other forms of alternative dispute resolution are being used ever-increasingly in many, if not most, areas of law and family law is no exception.
It is trite to say that family law matters are amongst the most emotional ordeals any person can go through and it would be naïve to assume that the individuals taking part in the process aren’t being driven, at least to some degree, by their emotional and psychological states.
Effectively acknowledging and dealing with the ‘psychological crosscurrents’ of the parties in a mediation can be the difference between a successful or unsuccessful, mediation. Indeed, the need to change or modify the psychological relationship between the parties to increase the prospect of an agreement being reached can often be the biggest challenge in a mediation.
The psychological dynamics that may be at play in a mediation, particularly a family law mediation, are often well-entrenched. After all, these are people who were in a relationship for a significant period of time and it is not possible to completely change or ‘re-wire’ the dynamics of a relationship in the course of a mediation, nor should the mediation be seen as a form of counselling (although the process can be both empowering and cathartic). The emphasis should be on the individuals involved being able to recognise within themselves the psychological dynamics and drivers which could act as an impediment to agreement being reached. Being able to recognise them when they come into play enables parties to ‘separate the people from the problem’ and effectively get out of their own way.
As set out in Harvard’s Program on Negotiation, three psychological dynamics which can impact a mediation are:
- Fundamental attribution error – This refers to the tendency people have to regard, and respond to, another person’s behaviour as if that behaviour was a reflection of only their values or personality, when in actuality the behaviour may be due to the circumstances (i.e. not who they fundamentally are as a person).
- Self-serving enactment – This typically presents itself as a tendency for an individual to treat others in a way which best serves their own desire for self-esteem or power/control.
- Self-fulfilling enactment, or self-fulfilling prophecy – This is perhaps one of the easiest ‘traps’ to fall into, and it occurs when one individual treats another in a particular way, which then causes that individual to act the same way. Put simply, if someone begins the day by treating you as hostile you may unknowingly fulfil that expectation via the way you react to their treatment.
Any or all of the above can potentially de-rail a mediation process even if the parties genuinely believe they are using their best endeavours. Subconscious behaviours can and do have as much impact as overt behaviours. Of course, the examples above are only a fraction of the many types of psychological dynamics that could be at play during a mediation.
The importance of resolving inter-personal issues (to at least some extent) at the outset of a mediation cannot be understated, and the importance of the parties, their advisors, and the mediator being mindful of psychological dynamics like those set out above can be the difference between the parties reaching a successful outcome or not.
If you have any concerns about effectively reaching agreement during your mediation, or would simply like to discuss the process more, contact the team at Murdoch Mediations today. You can reach Andrew Crooke on 07 4616 9848 or book an appointment here, and Dean Foley is available on 07 3164 1111 or you can book an appointment with Dean here.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as a broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.