Tipping Points - Reasons Why Mediation Works in Complex Family Disputes

by Rikk Larsen
September 2003 Rikk Larsen
“Mediation can function like a tipping point - a moment when great changes can quickly occur in family dynamics. When certain preconditions are met the forces at work in a complex, intractable family dispute often break apart in the mediation setting.”

I am often greeted with extreme skepticism when I try to explain why it is possible that a mediator, in one or two sessions, can really help a family that for months, and often years, has been struggling with horrible, intractable problems. Whether it is an intense debate about changing an elder parent’s home, heirs playing out a life time of grudges and hurt feelings in the distribution of a decedent’s personal property, or severely negative parent child relations, families find that mediation can often be surprisingly effective.

Why? Because underlying all the surface tensions and hurts are individuals who are at a point where they want resolution. They are at a tipping point.

In his book “The Tipping Point, How Little Things Can Make a Big Difference,” Malcolm Gladwell describes how huge transformations often occur like an epidemic. There is a moment in a system when conditions are such that small changes have dramatic effects. Take for example crime in New York City. In the 80’s crime was rampant but by the mid 90’s it had dropped in most categories by two thirds. Why? Well, the city committed to a no holds barred attack on highly visible stuff like subway graffiti, squeegee guys on the street, and city cleanliness. In some sense these acts were the catalyst for major societal change. But there had to be other underlying preconditions for success: a new proactive police force, declining crack cocaine trade, a population ready for this positive contagious behavior. In fact, contagiousness is the first of three key elements that leads to the dramatic moment, the tipping point. The second is small changes have big effects and third, change happens fast.

Timing is everything. In complex family disputes the simple fact is that mediation can be the forum for positive change, the tipping point, but it needs a number of preconditions to be successful.

Let us use severe parent teenager issues as our testing ground of this tipping point/mediation concept. The setting could be any family dispute but here let us go into the lion’s den and use CHINS cases, Children in Need of Services, as they are called in Massachusetts. Typically a CHINS case involves parents who, in their desperation, have turned to the court system to help control a teen who has been labeled a runaway, a “Stubborn Child” (defiant, impossible to control) or a severe truant.

Ironically, both parents and child come to a CHINS mediation feeling powerless even though there is generally a huge power imbalance, usually in the child’s favor since he/she has successfully harnessed the negative power of extreme bad behaviors to undermined normal parental authority. Invariably the session begins with a sullen teenager sitting defiantly, arms crossed, head down, at the edge of the space allotted for the session. The presenting issues are (pick any combination) - stealing, inappropriate/dangerous sexual active, drug taking, running away, extreme laziness around the home, academic failings, obstructionism, surliness, lying behaviors, inappropriate friends. We hear the sad family story. Barbed accusations fly back and forth. Each side has heard the litany hundreds of times and barely listens to the other as hot buttons are pushed. The teen is usually in denial about the power of the probation officer and the consequences of an impending court hearing. The parent/s have come to this humiliating point in desperation having only grudgingly given up control to the court system.

Up until this point the parties haven’t exhausted the blame game – its all his/their fault. Each party enjoys wallowing in the pool of negative power. To complicate matters there is generally at least one three hundred pound gorilla somewhere in the room be it parental drinking/drug taking, never having set limits as the child grew up, or the child used as pawn in a bad separation or divorce.

Certainly many mediation sessions do not end in a family agreement. Parties do walk out and never come back. But surprisingly often agreement is reached and follow-up research shows things do change for the better after mediation. What happened? I believe that when it works it is because we were at a tipping point, a moment where, whether they knew it or not, both parties were tired of how things were and were ready for peace. The child would never admit he/she is tired of negative behaviors and deep down is ready to change. The parents are ready to give up the now new normal family entrenched behaviors, the screaming back and forth past one another. In many successful CHINS mediations neither the child nor the parent has to acknowledge guilt or fault. They work on a positive agreement as a powerful surrogate for apology.

This brings us back to the tipping point concept. Successful severe parent/child mediation cases, and most family disputes, have five elements, which form the backbone of the tipping point moment in the family context:

  • LONG TERM CONNECTION - The parties are closely involved and despite everything have a common goal - family harmony. They are generally going to have long-term relationships with the other parties.

  • SPACE - In order to achieve agreement they need the right kind of setting and “soft guidance” which are the core of the mediation model – giving them space to work out their own solution.

  • BREVITY – The mediation process type is short and intense and looks to the future. Brevity of mediation is an asset. It has a forward-looking focus that avoids the mire of old issues dragging participants back down again.

  • FREE CHOICE - Real “Voluntariness” of participation has probably never been offered to the child before. In every other meeting type he/she has participated in, power has always been on the side of parents, the school, the police or the courts. Parents, who have seen rules disappear through the negative power of truancy, running away, or obstructionist behavior, find communication easier when participation by both parties is voluntary. Not being the authority figure frees them to participate wholly in the agreement process.

  • NEUTRALITY – the power of neutrality – non-judgmental, but validating mediators who project a true “We have no stack or opinion about the outcome” have the ability to affect good communication. Since the mediator doesn’t care you “can’t get his goat.”

The table is set for the parties to develop and own an agreement that doesn’t come down from on high. If it happens, it will be a swift, contagious moment no one could have predicted – a true tipping point.

Biography


Rikk Larsen is a founding partner of Elder Decisions where he is a mediator, trainer and conflict coach. He has created and presented conflict skills trainings to eldercare professionals from around New England. Rikk served on a Subcommittee for the Massachusetts Trial Courts Standing Committee on Dispute Resolution. He co-presented Using Mediation in Elder Law at the Massachusetts Chapter of the National Academy of Elder Law Attorneys and presented a workshop When Families Struggle with Dementia: Facilitating Solutions through Mediation at the Dartmouth Alzheimers Conference. He is the co-author, with Crystal Thorpe, of "Elder Mediation: Optimizing Major Family Transitions" for Marquette Elder's Advisor Law Journal. Rikk is a former case coordinator for Family and Probate Court and a case liaison for Small Claims Court for the Harvard Mediation Program. He attended Harvard Law Schools Program on Negotiation, studied elder issues with The Center for Social Gerontology and the concept of introducing meditation and spirituality into the mediation process at the Harvard Negotiation Programs Insight Initiative. He is a member of the New England Chapter of the Association for Conflict Resolution and the Massachusetts Council on Family Mediation. He received his BA from Williams College and his MBA from Harvard Business School.

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Website: www.howell-larsen.com

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