From Diane Cohen’s Blog
Although I hesitate to take the new television series, Fairly Legal, too seriously, it can be an opportunity to see how the makers of the show — and therefore, perhaps, the public — imagine that parties might react to particular mediator interventions. In this week’s episode, as Kate Reed sat down to work out an agreement between an injured party and the insurance company, she was stumbling along without completely losing the parties until she suggested that the insurance company might reconsider its offer and the wife of the injured party could use some of the money to get counseling. The wife erupted in disgust and left the mediation.
What I find interesting is that the makers of the show thought that having Kate recommend counseling would, of all things, be that offensive. Yet, hearing it made me cringe, and the woman’s reaction struck a real note.
The question arises: what felt so wrong about Kate’s recommendation? In my mind, the most offensive thing about it was the way Kate glossed over the possibility that the wife might have some legitimate concerns and went straight to judgment about the issue. Telling her that she needed counseling when the woman herself had not expressed any concerns of that nature was, in effect, saying that her concerns — or a portion of them — were unjustified and were only a result of her inability to deal with her emotions. Kate jumped to make this recommendation before she even tried to understand or tried to help the insurance company understand what the wife was so upset about. Sure, it was good for the TV plot to have that develop over the course of the show, but the question is: is there anything of value that mediators in the real world need to learn from this?
One thing it highlights is the intuitive truth of some of the fundamental precepts we use as mediators — the need of each party to be heard and understood, to have their views taken seriously and respectfully. It is surprising how comprehensive these concepts are. I notice over and over again how valuable it is to check in with the fundamental principles of mediation and to allow them to guide us. The gut feelings of the producers of this episode can be explained by nothing more than a reference to our guiding principles. It should be reassuring for mediators to know that by paying careful attention to the basic precepts of our field that we can be guided to an intervention that is likely to avoid this kind of pitfall.
So, given that most of us do not mediate like Kate Reed, what can we learn, specifically, from this episode? I have often heard of family mediators recommending therapy to clients. When a client has expressed concern about their own emotional state, that is an option for the client to consider, of course. But it is not something the mediator should propose of his own volition when the client is not raising it as an issue.
I have heard it said by some attorneys and mediators that a spouse who is so upset that he has trouble focusing on the negotiations should go to counseling to help deal with his or her feelings. Is this any different than Kate telling the wife to go to counseling? I think not. In fact, the statement says that the spouse who is having trouble focusing has an emotional problem rather than a legitimate one that needs to be considered and addressed. Perhaps it is to be expected that the spouse is upset and needs more time to adjust before negotiations continue — that does not imply that the spouse should go to counseling during that period unless they feel they want to. Or perhaps the spouse needs to have a dialogue with the other party about the concerns that are causing the upset. Maybe he would like to understand more specifically what went wrong in the marriage, or perhaps he feels that there needs to be more discussion about whether to end the marriage at all.
In my mind, the way to address a concern which a party is raising, albeit emotionally, is to address the concern that the party raises without being distracted by the emotions behind it. Some mediators will note the emotion, and that is fine, so long as the noting of the emotion does not replace the reflecting of the issues raised. If the party is unclear about what he is being emotional about, then the matter requires drawing out. A simple question, such as: “can you tell me more about that” can help the party express his concerns. Or if it is unclear how the concern relates to the issues in the mediation or any result that might be sought, the mediator can ask a respectful query designed to have the party consider those questions and respond to them.
Although Fairly Legal is certainly not a template for conducting mediations, it can, perhaps, be an opportunity to see how the makers of the show (as representatives of the general public) imagine individuals would react to different mediator interventions. When these reactions feel real, we can then hold them up against our own knowledge of mediation and our guiding principles to see whether they comport with them. In fact, in this case, I think they do.
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