Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
Mediate.com

Don't Ask

by Michael Jacobs
October 2016 Michael  Jacobs

"So, when can I see the children?"

This question, posed by the non-resident parent, is one many mediators will be familiar with. Uttered with a mixture of frustration, anger and desperation, there is the accompanying sense that whatever the response, it is unlikely to be the one they hoped for.

The reply is often a succession of reasons as to why contact should be minimal, supervised or even withheld. At which point the question is supplanted either by anger ("I have as much right to my children as you!") or a despondent acceptance ("How long do you think I will have to see them at the Contact Centre?").

As a mediator, I have struggled with this particular dynamic for years, seeing it as a manifestation of power on the part of the 'gate-keeper', i.e., the parent with whom the child/children primarily reside. In the UK, this is usually the mother, but I have also seen exactly the same interaction when the father is the resident parent. In either case, I have found it very difficult not to form judgments about what I perceive as 'controlling behaviour'.

Over time, I have tried to find ways to engage with gate-keepers. I’ve introduced the notion that "With power goes responsibility". I’ve asked what needs to happen for them to shift their position with the typical response being "I will know when s/he is ready for the next step". I've also tried empathising, acknowledging the loss of their role as primary carer – and the subsequent threat to their identity (and sometimes their bank balance).

Very little of this worked. Not only did I fail to move the process forward, I struggled to maintain impartiality. I’m aware of at least two occasions when the resident parent become even more firmly entrenched in response to my attempt to 'push them’ out of their position.

For the imploring party, their options can feel extremely limited. They can take what’s being offered, with the speculative hope that over time contact will be allowed to increase. Or they can unleash their frustration and threaten to go to court. For me, as a mediator, both options are problematic. Neither choice is the outcome of a bi-lateral conversation. Instead, they are purely reactive, prompted by the perception of a take it or leave dynamic. Choice seem to be restricted to giving in or going away.

This dynamic undercuts mediation's potential for facilitated conversation. In conversation people express their thoughts, views and feelings – while simultaneously attending to the thoughts, views and feelings of the other. Conversations are about sharing what makes sense to each – and as such are open to questions, curiosity and challenge.

Asking is not conversation. Neither is begging, pleading or demanding. These are all ways of turning a two way conversation into one way traffic. In each of these interactions one party has the power to say yea or nay.

Parents often differ in their parenting capacities. Some parents do in fact know more about their children, are better informed about their needs. When this is the case, it makes sense for the non-expert parent to draw on the other’s experience for the benefit of the children. Having experience is not, however, the same as having the power of veto. Nor does needing help imply that the non-resident parent has second class status. The guiding principle is what do our children need? What do you believe and what do I believe.

My practice has now changed to incorporate this principle, specifically at the initial individual meeting. The non-resident parent often arrives at this session incredibly frustrated at the absence or limited nature of the contact they are currently having. Or as they usually express it, being allowed to have. And they want to use mediation to ask for more.

At which point, our conversation shifts from content to process. I explain that in asking for more contact with their children, they risk reinforcing the idea that decision-making rests with the other party. In effect, accepting the notion that they are less responsible, less powerful, and less of a parent.

Mostly they get it. They also recognise they’ve been complicit in creating a dynamic that has often been in place for years. It was the way things worked even before the separation. They appreciate that it is now habitual – and thus far harder to change or shift.

While this may sound dispiriting, I think it marks a potential turning point. Previously, they believed things would only improve if they could convince, persuade or change the other person. Some having been trying this strategy for years with little or no success. Only now, having acknowledged their part of the problem, can they shift their focus from trying to alter the other’s behaviour to changing their own. 

And the first thing they need to do is stop asking.

As parents, we are entitled to want the best for our children. We want to ensure that our children are healthy, well looked after and safe. The Children's Act describes this intention as "working in the best interests of the child". The conversations in mediation are often centred on what "best interests" might look like in practice.

These are precisely the kinds of conversations that parents need to come prepared to have. The most productive thing the non-resident parent can do is give serious thought about what they believe is 'in the best interests of their children". And in the context of the joint session, express these beliefs in a proposal that that they are willing and able to discuss with the other party.

And they may very well meet resistance. The resident parent may come back with an immediate "No way!" At this point, the danger is that the conversation reverts to the same habitual patterns that both parties have come to know and expect. And in some way, the very familiarity of these ‘non-conversations’ may well provide a strange kind of comfort. What it probably won’t provide is any useful dialogue or significant shift.

As mediators, I think we need to help prepare clients for this moment. We need them to treat rejection as the first step in the articulation of an alternative proposal.  As hard as it may seem, they need to replace anger and frustration with interest and curiosity. This can feel especially difficult when all they want to do is berate or belittle.   

What parties need to realise is that judgments inevitably shut down conversation. In making a judgment, we express our lack of interest not only in what’s being said, but in the thoughts and feelings that lie behind the words. And in the absence of respect, people either attack or defend. And in either case, dialogue, negotiation or compromise recede into the far distance.

Staying conversational means giving up the urge to judge, replacing it with the desire to understand. To explore with the nay-saying parent, why they believe their proposal supports the 'best interests of the children'. To respond with curiosity rather than derision, interest rather than argumentation.  To manifest as much as possible, appreciation for their point of view.  

This doesn’t mean you have to agree. People (including parents) are entitled to think and feel differently. What matters is whether they've had the opportunity to fully express what and why they think the way they do. And to have this thinking respected by the other party. Non-agreement does not imply non-respect.

And this is the primary difference between asking and conversing. To have one's request turned down without an increase in understanding, is simply about power and control. Mediation is hard work precisely because at this point it is so tempting to retreat into frustration or despair. We need to remember the aim of mediation is to help people make better informed decisions. Fundamental to this endeavour is the willingness to increase understanding. Even when the understanding that emerges is that mediation is not the way forward at this point in time.

Let me be clear, I am not saying that separating couples should never ask anything of each other. Making requests is part and parcel of respectful interactions. We ask to clarify assumptions. We ask to explore possibilities. We ask to get information or feedback.

The danger arises when asking is based on fear or hope. In these instances, we prioritise the world of the other over our own experience. We give away our power. In doing so, we abdicate our sense of being an equal conversational partner, entitled to name what we believe is the right thing to do. Having given ourselves away, we then insist on blaming the other for our absence. This accusation is neither accurate nor helpful.

The reality is that only by starting and stating where we are now, is it possible to take a step towards somewhere new.

Biography


Michael Jacobs has been mediating for the past 23 years across a range of disputes, including family, community, workplace and civil/commercial. He appreciates the fact that even after all this time, he is still quite capable of making mistakes and getting things wrong – it means that he has more to learn.  



Email Author
Author Website

Additional articles by Michael Jacobs

Comments