First Published: Family Law July 2002. Volume 32 Page 555 (Publishers Jordan Publishing Ltd)
It might seem strange to start an article on mediation with a quotation from a poem (number 254) by Emily Dickinson. The full text of the first stanza reads:
‘Hope is the thing with feathers – That perches in the soul – And sings the tune without the words – And never stops – at all –
(in Sullivan (ed) ‘The Treasury of American Poetry’ (Doubleday & Company, Inc., 1978) ).
Here Dickinson’s writing, typically sparse and taut, captures the persistent virtue of human hope, which she subsequently likens to the song of a bird in a storm. Years earlier, however, Dr Johnson reportedly described the remarriage of a previously unhappy widower as the triumph of hope over experience. Watts’ painting ‘Hope’ (gifted to the Tate Gallery in 1897) depicts a frail, blindfolded figure, forlornly clutching a harp with only one remaining string, an allegorical representation of tenacity in the face of desolation. The phenomenon of hope was manifest in New York last September when, following the catastrophic attack on the World Trade Centre, hundreds of missing person posters were displayed throughout Manhattan weeks after it was evident that no further survivors would be found.
Hope undoubtedly has a bad press in our present culture and has had a dubious reputation ever since Pandora opened her box. It is typically considered ethereal, vague and often associated with the word ‘vain’. As a society we are generally ambivalent or cynical about hope, too sophisticated and jaundiced to take it seriously. A serious consideration of hope is not fashionable.
And yet, paradoxically, we live by hope. The enormous national consumption of medication, especially psychotropic substances, demonstrates peoples’ hope that taking drugs will effect a cure for – or at least relief from – distressing symptoms. Hope operates every time we make a journey, buy a product or start a relationship. Stotland (The Psychology of Hope Jossey-Bass 1969) famously defined hope as ‘an expectation greater than zero of achieving a goal’. Given the much-reported uncertainty of adjudicated court outcomes in ancillary relief proceedings, the hope that things will turn out in their favour must surely motivate litigants, since no legal adviser, however competent, can give them an unqualified assurance of success.
In his seminal work of comparative studies in psychotherapy, Frank (Persuasion and Healing The John Hopkins University Press, 1961) wrote that the ‘mobilization of hope plays an important part in many forms of healing in both nonindustrialized societies and our own’. Closely linked with hope and optimism are placebos, inert chemical substances effecting positive change when administered to patients, the power of which to relieve symptoms is well documented in numerous medical texts. More recently the benefits of such techniques as creative visualisation have been demonstrated, e.g. the measurable improvement in muscle strength achieved when volunteers visualised exercising their pectorals rather than physically flexing them (Seeing is Believing The Times, 22nd November 2001).
A leading exponent of the theory of hope, Professor Carl Snyder of the University of Kansas concedes that ‘previous writers have been sceptical and ambivalent about hope, suggesting it is too vague to measure, and useless to measure if we could’. (Snyder ‘Conceptualizing, Measuring, and Nurturing Hope’ (1995) in Journal of Counseling and Development Volume 73, American Counseling Association, Birmingham, Alabama). We rely on hope, but do not trust ourselves in so doing. Our dependence upon it is denied at every turn and disguised by a veneer of supposedly rational thinking and qualified risk-taking.
Mediators also deal with issues of hope and optimism. When clients choose mediation as a means of resolving their differences they are investing their hopes in a process about which they usually know little. What prior information they have is often inaccurate. To some extent the only way to find out about mediation is to participate, by which time people must already have made at least some sort of commitment to it. An important aspect of mediation ‘intake’ sessions is the opportunity for the mediator to contextualise the process to the clients’ circumstances, a vital function in achieving mediation start-ups. The interaction at these meetings contributes to the client’s ‘conversion’ (an interesting word in the context of this discussion) to mediation and relies, amongst numerous other factors, on the conveying of hope regarding the mediation process.
Experience shows that when mediation is thus presented to clients it often articulates what they already had in mind, although perhaps in an unformulated, embryonic way. They may have arrived with a pre-existing wish to somehow settle matters with their ex-partner and avoid contested proceedings, although they may not know at this stage how mediation can help them to do so. A recent example of this articulation was a private client who came to her individual meeting wishing to resolve child contact matters. Her self-referral followed her insistence, having been told of her legal rights, that ‘there had to be a better way than going through the courts’. It was only when she declined to make an application to the court that the possibility of mediation was mentioned to her. Litigation, after all, still dominates family proceedings.
Clients do not automatically want to go to court. On the contrary, many, such as this mother, wish to retain the decision-making roles and skills they exercise in everyday life. They express their fears that adjudication may effectively deprive them of their autonomy. Mediation thus fulfils the pre-existing hope of those clients who have already eschewed a ‘fight’, as well as introducing the possibility – and hope – of consensual settlement for those who are new to the idea of Alternative (or ‘Appropriate’, as it more aptly known in other jurisdictions) Dispute Resolution. It is the writer’s contention that this antecedent hope of resolution in clients is far more widespread than may currently be recognised.
We live at a time when the rights of the individual in European society are promoted and protected in a way undreamt of in the past. To resolve one’s contentious issues with another party in a way both see fit is surely part of both persons’ basic freedoms. However, as Menkel-Meadow points out, the legal entitlement of substantive law may impact on some cases more than others when it comes to either creating or claiming value in negotiations. (‘Negotiating with Lawyers, Men, and Things: The Contextual Approach Still Matters’ (2001) in Negotiation Journal Volume 17 Number Kluwer Academic/Plenum Publishers). The interface of substantive law with privately negotiated settlements goes to the heart of the ‘ownership’ of disputes and issues of power and control. It raises the question of the extent to which clients may truly exercise self-determination and constitutes what Menkel-Meadow identifies as ‘one of the most interesting, complex and jurisprudentially irksome topics in the legal theory of the justice of negotiation’.
Hope remains a worrisome concept. What if mediators are giving clients false hope – after all, we cannot guarantee a ‘successful’ mediated outcome any more than legal advisers can guarantee winning at court. Are the hope and optimism conveyed by our commitment to mediation false, or undeliverable? All professionals generate belief in those that consult them – obviously, one would never submit to surgery by a doctor who expressed doubts about either his capability or procedures. Indeed, Frank’s (1961) work (above) quotes studies where, when the medical staff believed in the efficacy of certain drugs, this resulted in the dosages being demonstrably more effective when administered to patients. In other words, hope is catching, and like begets like. The fact that twenty first century scepticism may not have an explanation for such phenomena does not mean they do not exist. The current thinking of several leading mediation academics, advancing ‘second generation’ dispute resolution theses, demonstrates renewed attempts to integrate ‘intangibles’ from the fields of psychology and the social sciences within negotiation theory. Broadly, this new tranche of writing posits that the settlement of disputes entails far more psychological and emotional complexity than distributive bargaining models would suggest.
Several psychologists have researched the universality of hope and developed frameworks by which it may be measured and modelled. Further, an overview of a range of psychotherapeutic treatments identifies the key elements effecting symptom relief and client change in these proportions; external/extratherapeutic factors (60%) relationship (with therapist) (30%), method (of therapy) (15%) and placebo, hope (emphasis added) (15%). (www.talkingcure.com/whatworks.htm ). Hope is therefore intrinsic to beneficial change.
Snyder has published a scholarly body of work researching the roles of hope and optimism in human functioning and achievement. His work addresses their application to areas as diverse as sporting activities, the recovery of cancer patients and concepts of self-worth in children. Snyder’s thesis stems from the identification of hope as the ‘bridging concept’ underpinning considerable evidence that there is an ‘equal efficacy among varying psychotherapies’ (‘Hope Theory: Updating a Common Process for Psychological Change’ in Snyder and Ingram (eds) Handbook of Psychological Change: Psychotherapy Processes and Practices for the 21st Century John Wiley & Sons 2000). The relevance of Snyder’s work is located in what he terms ‘a new theory of hope’. Snyder’s model has valency beyond psychotherapeutic interventions and is of value to anyone working with people facing change or transition.
He writes: ‘our new model of hope has three interrelated cognitive components, referred to as goals, agency and pathways’ (original emphasis). ‘Goals’ are, as one might suppose, the ‘targets of mental action sequences…such goals must be sufficiently important to motivate people. Goals that motivate should be attainable and yet contain some inherent uncertainty’. He notes that goals can be short to long term. ‘Pathway thought typically involves the perceived ability to imagine one principal avenue to the desired end point’. Snyder also observes that ‘high-hopers’ produce more alternative routes when blocked. The third component, ‘agency thought’ is the ‘perceived capability to begin and sustain movement along the envisioned pathway to a desired goal’. (original emphasis). ‘Agentic thought’ allows people to ‘channel their positive mental energies to alternate pathways’, especially when difficulties arise. A simple summary of the model might read; ‘I have a goal – I can see ways of getting there – I believe I can do it’.
Snyder’s work is important to mediators and other dispute resolution professionals. By being introduced to the notion that litigation is not the only way to settle conflict, the client is reoriented to the ‘goal’ of a consensual outcome with the other person. ‘Pathway thought’ is created by using the mediation process as the ‘avenue to the desired end point’, enabling disputants to see it as the means whereby they can reach a settlement. Lastly, the mediator joins with the clients in their search for resolution, assisting them to generate ‘agentic thought’ in terms of realising their goals. In practical terms this is what happens throughout mediation. The intake process, the signing of the agreement to mediate and the mediator’s alignment with both parties throughout the phases of negotiation all create conjoint goals, optimum pathways and agentic thought towards securing mutually acceptable proposals.
Snyder advises a ‘stepping’ approach to the achievement of successful outcomes, i.e. he advocates moving in small stages towards larger goals. Mediators typically deal with negotiations in discrete, manageable parts, securing settlement by addressing issues incrementally. As Snyder suggests, ‘Another advantage of short-term steps is that the client can more readily perceive when gains are made’. In mediation, identifying and summarising subset decisions maintains momentum and assists closure. Finally, Snyder emphasises that it is ‘the clients’ perception that they can find successful routes to that actually appears to drive the attainment….’.(original emphasis). It is usually helpful to identify goals with mediation clients, especially at option development stage, even if targets were difficult to envisage earlier. For instance, a ‘goal’ which prioritises keeping children at the same school following divorce will lead to ‘pathway’ discussions about how this can be achieved when settling property and finance issues. ‘Agentic thought’ denotes the clients’ belief that they are capable of finding solutions enabling them to achieve their goal, and, further, have the capacity to persist until it is reached, even if the ‘pathway’ is difficult. Instead of defensive responses to the demands of ‘the other side’ – which often result in people becoming self-protective and un-cooperative – hope and optimism generate a combined effort to find an early solution (which is, after all, what most clients want).
Working with clients’ hope and optimism is one of the many privileges of being a mediator. Identifying goals, pathways and agentic thought harnesses hope and optimism within the negotiation process and utilises the strengths clients bring to the table. Snyder’s concepts transfer hope from the amorphous and inaccessible to a working model, readily translatable into mediation practice for the benefit of the parties.