Arbitrators: Part of an Adversarial process – or a Peace process?
There seems to be an assumption amongst even some Mediators and Arbitrators, that a mediation process that is foundering must be inherently one of conflict when a decision can’t be reached. That a couple have to be resolutely disagreeing over an issue as the only reason an arbitrator would be brought in. But sometimes the couple just don’t know the answer; they don’t know what to decide.
Intrinsically adversarial… Not!
I have been told: “Arbitration is intrinsically adversarial” by an experienced Mediator passionate about allowing couples to move on from their separation in a way that is constructive and not adversarial. Even some Arbitrators with ‘legal minds’ have tried to tell me that arbitration is part of an adversarial process.
I feel that this belief is not only incorrect, but also very damaging to the future of dispute resolution. If the family law industry continues to see everything through a pair of spectacles manufactured by an inherently adversarial family law system, then they will continue to misperceive what they see before them.
Let’s look at mediation: When a couple get plain stuck on what to decide, it is the fear of this situation arising that can put people off mediation, because I suspect that people find not knowing what they want as stressful as not getting what they want. This is when an arbitrator has a supportive role to play in mediation, because the Mediator has to remain impartial, so cannot ‘give the answers’.
I first heard about arbitration from the New York Mediator Ken Neuman, who explained it’s usefulness beautifully. “Sometimes” he said, “there comes a point where the couple just want someone to decide for them.” Especially if it is a complex financial situation, where there are several options available.
Why not making the final decision yourself is not necessarily ‘adversarial’ in nature
The difference between two people going to court to fight over a decision, and two people voluntarily agreeing to abide by the decision of an expert, so they can continue their process of mediation (or complete that process by sorting out one last issue) is very clear to me. They are completely different scenarios! One is a couple embroiled in conflict, and the other a couple seeking resolution. But then I am not a legal mind – I may be seeing it more as an energetic difference?
How contentious would a court battle really be if a couple agreed in advance to “agree to disagree” if the outcome is not what one of them wants? If they were in that frame of mind, why would they need to go to court at all if they had a simpler option that kept them in control of the process? This is what arbitration represents to me, and the emotional and conflict level between that couple will be significantly different to if they were engaging in the court process.
I read something this morning about conflict that feels relevant to this discussion: “Conflict must be resolved. It cannot be evaded, set aside, denied, disguised, seen somewhere else, called by another name, or hidden by deceit of any kind, if it would be escaped. It must be seen exactly as it is, where it is thought to be, in the reality which has been given it. For only then are its defences lifted, and the truth can shine upon it as it disappears.” (ACIM Lesson 333)
A different pair of spectacles
Fundamentally, what I am suggesting is that mediation be viewed not as an alternative to conventional family law, but as a completely different mindset. Where the couple are expected to highlight their differences of opinion and share their confusion over what would be the best outcomes, and use any available means that supports completing that process WHERE THEY STAY IN CONTROL. If I choose an Arbitrator to come to a decision for me, I am still in control of that process. Not running away from it, giving up, saying ‘mediation doesn’t work’ because one issue confounded us during the negotiations. Feeling a failure that myself and my partner have not been able all on our own to find all the answers because the Mediator (quite rightly) is there to support us but not to give us those answers. But sometimes, I WANT someone to tell me the way forward if I choose to invite that in!
What a shame it would be if that became the culture of mediation? “It’s all on your shoulders and you (and mediation) are a failure if you quit” is not as empowering as: “You’re in control of the process with a holistic range of support through financial, legal (including arbitration) and wellbeing experts available to you if you so choose”.
I know which form of mediation I would opt for. One where conflict is embraced as a natural process to work with, accessing all available resources, knowing there is no final answer but only the next step on the road, building a collaborative post-parenting relationship based on honesty and finding resolutions to inevitable disagreements, whether it’s through an Arbitrator for financial issues or a parenting expert for parenting issues. Agreeing to both trust the expert advice we choose to access and building that trust in the relationship itself, as we continue to find a way through conflict each time it arises without throwing in the towel.
What I see is a conflict within the legal profession itself over what Arbitration can be used for, and ‘whose side’ it is on. As the quote above says: “(Conflict) must be seen exactly as it is, where it is thought to be, in the reality which has been given it. For only then are its defences lifted, and the truth can shine upon it as it disappears.”