Issues of conflict commonly arise when parties within a case find themselves intolerant of each other’s requests or opinions. When goals change, cracks can begin to form in relationships of any kind – from marriages, to parents and their children, colleagues in the workplace and more. When people think and act agreeably, there is an alignment that ensures dispute and conflict can often be avoided – however this is rarely the case in legal matters, particularly in regards to family law.
Unfortunately, the more conflict is allowed to grow, the more likely it is that such conflict will begin to cause serious problems – which can be a barrier to resolving a case and reaching an amicable settlement. The task of professional mediators, collaborative lawyers and negotiators is to utilize the right techniques in de-escalating conflict and resolving matrimonial and family law cases. Although this blog is mostly written with divorce mediation in mind, such techniques can also be useful in collaborative cases, and to a certain extent may have some impact on classic settlement negotiation or litigation. However, the adversarial model used within the court system often tends to escalate, rather than reduce conflict – leaving less room for resolution by agreement.
How Conflict is De-Escalated
One thing that I often find in divorce mediation cases, and occasionally matters of collaborative law – is that if a party feels as though they are not being appropriately listened to and heard – they are reluctant to listen to anyone else. Because of this, ensuring that both parties within a case receive equal respect and attention is crucial. People want to make sure they are heard within a dispute, and preventing escalation means providing that sense. If someone feels ignored, they may stop listening in response, escalating the conflict and hurting the negotiation.
One way to try to ensure that a party feels both heard and understood, is engaging in looping techniques. “Looping” takes place when a professional attorney or mediator listens to the words either side is saying to them, then repeats that information in a way that acknowledges what was said has been heard and understood. This can help everyone – including the mediator – get a better grasp on what each person is saying and trying to achieve.
Furthermore, it’s important that each client is aware of the ground rules of a negotiation before mediation begins, or a legal case is addressed. Each party should have turns to say their piece, and be given equal time to discuss their needs without interruption. Often, I request that the couple direct their comments to me, rather than the other side in the argument – who they often have some discomfort or anger towards.
Avoidance, competition, and revenge are all concepts that tend to escalate or worsen conflict in any legal situation. On the other hand, when compromise, collaboration, and accommodation is emphasized, conflict can often be de-escalated and resolved. Usually, it is a good idea to utilize facilitative approaches which allow specifics to be shared about everyone’s needs – in the hope that together the best results can be maximized. Talking about why each party wants a certain outcome, and how they can reach their goals can be useful for everyone involved.
Often, escalation of conflict can also take place when both parties within a particular situation feel threatened by one another. In an attempt to protect themselves, clients regularly try to do things that can threaten the other side. However, if I, or another professional mediator can take away these negative feelings and encourage compassion, a more collaborative result becomes possible which can be a win-win, rather than a lose – lose scenario.
Although the of “splitting the difference” with goals and needs can sometimes work, it’s not the only way to divide – compromise is something that is regularly used throughout all aspects of family law – including litigation, but it is only one strategy in achieving the best possible results. Often, the importance of intangible considerations such as trust and relationships, or tangible aspects such as money, can be pointed out, and emphasized as part of negotiations. Qualified mediators have vast communication skills and training that assists them in helping people to meet and discuss the various aspects of their conflict. A mediator can be particularly useful in helping each party to understand the others’ point of view, and therefore generate potential options for resolution.
The Goal of Mediation and De-Escalation
The goal of mediation in family law is often to reach an agreement that both sides can live with or accept. This generally means discovering a zone of possible agreement wherein both parties can look at the range of what might be acceptable in terms of compromise and for the sake of ending the dispute. Generally, good mediators will promote self-determination to ensure that the people involved within the conflict will be able to consider the matter causing their conflict in depth, and think about what they can work with.
Although mediation does take place somewhat in the shadow of the legal system, it is less restrained by the issues of what a court might order – meaning that people regularly have more control and flexibility in discovering a solution that works for them. Furthermore, another primary advantage of mediation is that it is fast and effective. Clients can avoid the concept of sitting around waiting for months or even years for a court to make a judgement. This is often particularly important in cases with a large amount of conflict – as delaying the resolution of a dispute can ensure that the issue escalates even further, causing disharmony to become entrenched and elevating the risk of further problems.
As always, if you would like to learn more about the techniques that are used in professional mediation, collaborative law, or any other aspects of family law, please read through our various blog entries and web pages. If you are interested in accessing help for your particular case, please call about your free initial consultation – we look forward to speaking with you about your legal needs. Mediating couples are invited to come together for their free consultation.