A colleague and I were recently discussing a case that has one wealthy family on the verge of litigation. The stakes are high, emotions are intense, and long simmering acrimony between siblings carefully fostered by a now deceased patriarch has reached a boiling point. In cases where family dysfunction is high and the stakes of family discord even higher, sometimes the only option is formal mediation. In cases on the verge of litigation or where trust is broken, it is important to understand that not all mediation is the same.
Many professionals are familiar with the kind of mediation that approximates a settlement discussion in a lawsuit. The parties are separated and the mediator shuttles between them with offers and arguments in an attempt to find middle ground. Once that middle ground is discovered and agreed to, a legal document memorializes the agreement. Parties rarely leave these proceedings with anything more than a bare agreement. While this may be all that is possible, it fundamentally involves a zero sum game of dividing spoils. In cases where those spoils are hard to divide, this kind of mediation may be inadequate to the task.
Other forms of mediation actually make the pie to be divided larger and hence create more value for all involved. These types of mediation almost always involve some degree of face to face discussion. The role of the facilitator in these engagements is to create a strong container for discussions to occur and then enforce the rules in the course of the discussions. Depending on the parties capacity for self-management, the facilitator will allow greater or lesser flexibility in the discussions. When handled deftly, the parties are able to air grievances and eventually articulate what it is that will appease them. In some cases, a measured sense of reason (if only a recognition of mutual self-interest) can be restored and the parties can begin to craft agreements that do more than simply divide a limited pie. While healing may not be possible, such agreements, when legally enforceable, can bring a kind of nominal peace and put an end to truly destructive behavior.
When done extremely well, mediation can be an opportunity to challenge not the positions of the parties, but the very framing of the issues involved. Skilled facilitators who understand family systems can often reframe the family stories, shift family roles, disrupt worn family scripts and open new possibilities for discussion that did not exist before the mediation. By disrupting the family system and forcing the family to redefine itself, these mediations can actually do a great deal to create truly positive outcomes for the families involved.
- Have you seen families litigate against one another? What were the results?
- Do you believe that some form of mediation or other alternative dispute resolution would have been workable in these cases? Why or why not?