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<xTITLE>The Paradox of Pain in Mediation</xTITLE>

The Paradox of Pain in Mediation

by Michael Jacobs
September 2020 Michael  Jacobs

Pain is a mixed blessing in mediation. 

On the one hand, parties often want to use mediation as an opportunity to inflict hurt and pain on the other side. As far as they’re concerned, the other side is definitely the spawn of the devil. They feel no remorse in launching attacks on their character and personality. The language used is often abusive and rarely restrained. 

This kind of inflammatory language, with an intent to blame and wound is never helpful. Largely because inflicting pain generates the desire to do the same in return. So the mediation becomes a downward spiral of tit-for-tat of negative judgements and accusations. 

This dynamic gives rise to one of my colleague’s belief that a chief responsibility of a mediator is to ‘contain the pain’. What she means by this is that when parties are engaged in a slanging match, the mediator has a duty to intervene. Not only to protect the parties from further abusive language and behaviour, but also to ‘reframe’ what’s happening in more useful ways. 

The generally accepted understanding of aggressive behaviour is that it often arises from a sense of not feeling safe. Feeling exposed, at risk, or vulnerable can be disguised by lashing out and tearing down the other. And while this strategy may indeed often some kind of protection – based on the theory that attack is the best form of defence – it almost never results in a mutual agreement or a restored relationship. 

This kind of pain is corrosive. And the attentive mediator needs to ensure that it doesn’t become the primary medium of exchange between the parties. Instead, the mediator needs to redirect the energy back inside the speaker to discover what it is that is generating the anger and vitriol. In nearly every instance, the anger and aggression can be traced back to some unmet need inside the speaker, whether that’s for respect, recognition, fairness or acknowledgement. Helping parties ‘translate’ their pain into something they need is a key part of the mediation process. 

The paradox is, that at the same time mediators are ‘containing the pain’ between parties, we are also encouraging parties to ‘feel the pain’ engendered by the current situation. We want parties to express the impact that they are experiencing, highlighting the difficult, problematic and painful aspects. The difference is that we want them to voice what it is like for them, rather than talk about the other. 

This reinforcement of the impact can be spread across their wider lives. Parties acknowledge the stress, anxiety and worry that they feel. They talk about losing sleep, getting ill, domestic problems and depression. Voicing this kind of pain is very different from hurling abuse for two reasons. 

Firstly, when parties can speak from themselves and be explicit about the impact the situation is having on them, they break the cycle of attack and defence. In talking personally, flagged up by using “I language” rather than “You language”, people in mediation make themselves visible to each other in more open, honest and human ways. This goes a long way to shifting the kinds of conversations they are able to have. 

And secondly, by ramping up the internal pain and discomfort, parties can experience a powerful motivation for change. People need a good reason to do differently and suffering is one of the chief drivers to making a different choice. So it makes sense to encourage parties to talk about how crap their lives have become, how much discomfort they are now experiencing. 

This kind of pain, firmly rooted in their own individual experiences, can act as a potent prod to move forward, to find a way of reducing or eliminating the stress and hurt. In many cases, parties are willing to negotiate agreement not because the future is shiny and bright, but to escape the discomfort and darkness of the present. 

On this basis, pain is very much a mixed blessing in mediation.  



1 I’m grateful to my colleague Anna Finlayson for this formulation

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.  



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