Family law mediation is laced with raw emotions. Abandonment issues abound. Social disruption is the norm rather than the exception. Emotional pain, sorrow, sadness, regret and remorse are encountered in circumstances that call for courage, calm and control. Family law mediators are called upon to ferret out motivations, interests and needs in what are often trying circumstances. Such mediators must be prepared to deal with the four basic emotions of grief, anger fear, and love. We understand that a transparent, open and positive approach (TOP Mediation) is needed in family law mediation. This requires both a rational analysis and an analysis that attends to emotional issues if the parties are going to have a sense of fairness, justice, understanding, and closure. The focus of this article is on the application of TOP Mediation in the context of the highly emotional and volatile area offamily law mediation. Given the nature of such a mediation, the emotions of grief, anger, and fear need to be part of this discussion.
Since family law disputes abound in fragile and volatile emotions, hidden agendas, vindictive actions, and use of the legal venue to exact vengeance and retribution, it is important that mediators model balance, calm, and fairness. This can be done most effectively with a transparent (T), open (a) and positive (P) approach. This process utilizes caucuses, facilitative discussions and evaluative intervention. The idea is to create an open dialogue which models appropriate communication for later in the conflict process. Use of transparency helps to recreate some trust in a setting where trust and respect have been shattered. The mediator's positive tone can set a stage where families can find a new way to communicate that fits the new circumstances. We engage in TOP Mediation with a strong tone that creates an agenda, gives the parties "voice", sets boundaries and allows the parties to build some level of trust if at all possible. It is our belief that the broader goals of TOP Mediation can only be accomplished if we attend to the emotional components of family law mediation.
Grief is the emotional turmoil associated with a lost or drastically altered relationship. It is a painful and heartfelt reminder of lass. Grief, in the context of divorce, is clearly a profound personal reaction to the loss of a relationship, the loss of a way of life and often the loss of financial security. Uncontrolled change can stir this emotion. The disruption of the family unit may involve feelings of regret, remorse, despair, abandonment and emptiness. These feelings in some combination are the context of the emotion we identify as grief. We have seen grief expressed by withdrawal, crying and other expressions of pain. Counsel and meditators must be sensitive to the expression of grief. The best place to start is with empathic listening. Empathic listening honors another's expression of grief and draws on parallel if not similar experiences. If the parties feel that you understand them, they can open up and express their underlying concerns and emotions.
Anger is that dark emotion that blinds us, rendering us unable to think, reason and understand. Anger is a blinding emotion that colors and filters perceptions. Anger creates an opaque looking glass that distorts our perceptions of reality. Not only is our vision distorted, but the ability to think rationally often deserts us when we are gripped by anger. Parties gripped by anger cannot be expected to think objectively. As mediators, we need to find a way, either through a caucus or a staggered start, for anger's expression. We need to listen. We need to have the compassion to walk in another's shoes. Only then can we guide, coach and model productive approaches to conflict resolution. As family law mediators, we often encounter the scenario where one parent has been taking care of the children and has not worked for 20 years or more. The other parent is having an affair and has filed for a divorce. The care-taking parent is now in their 50s and have no means of support. That parent is feeling fear, but often expresses this fear with blinding anger. As a result of the anger, the parent may be antagonistic and resist anything the other parent proposes. Anger, in particular, disrupts negotiations by reducing the level of trust, narrowing the parties' focus of attention and changing their main goal from reaching settlement to retaliating against the offender. With anger, the key for the mediator is to diffuse the emotion by staying calm, listening to the parent and your own instincts, and not challenging or matching the anger being expressed. The caucus can be used as a safe place to vent. Other methods of dealing with the anger may involve interrupting the conversation or taking a cooling off break. Since anger can represent a potential for danger, if the conversation becomes over-heated or destructive, the mediator should become more assertive and offer specific guidelines to govern the communications.
Fear is the emotion that brings out either the coward in us or the courage we have in reserve. We have to overcome the former and embrace the latter. Fear is the apprehension, dread and fright that accompanies drastic change. Divorce is such a change. Suddenly one's life becomes unpredictable. People are forced from their comfort zone and uncertainty abounds. Self-confidence, selfesteem and self-actualization come under attack from the twin dragons of anxiety and fear. The anxiety is from within, the fear is external. People in fear have a powerful sense of insecurity and uncertainty. Fear can leave one paralyzed and feeling powerless. In the midst of despair, parties can fall prey to the siren's call to cowardice or heed their inner call to courage. We have seen both crippling fear and amazing courage in our family law mediations. Often in family law mediations, one parent is faCing the possibility of the other relocating out of state with the children. In such instances the predominate emotion is fear. The terrible but very real fear of losing their connection with their child or children may be expressed through avoidance, anger, or sadness. The mediator or counsel should help the parent identify and acknowledge his or her feelings. Empathic listening (also called "active listening") comes first and is the foundation for the trust that must be established. Personal stories or experiences are helpful to develop a connection and trust. Once the emotions have been vented, the mediator can then assist the parent in emotionally reframing and reappraising the current situation in order to analytically problem solve and come up with a solution. Depending on the circumstances, this could be done in either a group session or caucus.
Experience shows us that grief, anger and fear are often barriers to rational conflict resolution in the family law mediation arena. It is our belief that more often than not these feelings must be explored and acknowledged if the parties are going to be able to avoid protracted and costly litigation. Utilization of TOP Mediation allows the parties to find a way to successful mediations that resolve current conflict and provide a methodology to address future conflicts. Grief, Anger and Fear. On the rare occasion, a family may find itself involved in a situation where one parent discovers the other has been sexually abusing their child. This would involve the expression of all three emotions of grief, anger and fear, cycling through stages. Since such a scenario usually consists of the involvement of social services, the criminal justice system and the family court system, it would be crucial to approach any mediation with a collaborative effort. A mediation may not be appropriate, but if it is, the use of experts would be very important, especially psychological experts. Such a mediation may occur if social services and law enforcement decline to be involved, but one parent is still making the allegations of sexual abuse.