Getting the right fit.

 

When I began my studies in mediation some 7 years ago, I was drawn to the definition of conflict resolution presented by the theorist Cordula Reimann (2003) to the effect that conflict resolution is the elimination of the violent and destructive elements of a conflict leaving it as a conflict expressed in a non-violent way. It has been my experience in both litigation and in mediation that once conflict is expressed in a non-violent way, the parties are better able to see their options and the opportunities for change which conflict brings. It becomes possible for them to agree on some, it not all, of the issues or to just agree what the issues are or even to just agree on the existence of incompatible issues. Since I see conflict resolution as the elimination of the destructive elements of a conflict, this means that when I am mediating I focus a lot of my efforts on the de-escalation of conflict using a number of different de-escalation strategies.

 

I was recently introduced to the contingency model of third-party intervention propounded by Jacob Bercovitch. This is a model applied in international conflict resolution. Bercovitch (1996) first submits that conflict goes through four different and distinct stages of escalation—discussion (stage 1), polarization (stage2), segregation (stage 3) and destruction (stage 4)—in which there are different subjective and objective elements present. He identifies six different types of intervention strategies—conciliation, consultation, pure mediation, power mediation, arbitration and peacekeeping and then suggests that matching the type of intervention with the stage of escalation or de-escalation at which the conflict has reached makes it more likely that the third party intervention would be successful. It is my view that, with a little adjustment, Berkovitch’s model can be applied to inter-personal (family) conflicts.

 

Inter-personal conflict resolution strategies include conciliation, facilitation, negotiation, facilitative mediation, evaluative mediation, arbitration and litigation (with the last three on the more adversarial side of the resolution strategy spectrum). To create the derivative of Berkovitch’s model (which I will call “Kathy’s model”), I would substitute facilitative and evaluative mediation for pure mediation and power mediation in Bercovitch’s model. Facilitation and litigation would also have to be added to Kathy’s model (so there would be eight strategies instead of six) and development aid and peacekeeping would have to be translated into inter-personal terms—development aid would become financial assistance of any kind and peacekeepers would be the police or a social agency. These strategies can all be applied in an integrative manner in order to arrive at resolution.

 

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Strategies in Kathy’s model

Conciliation

Consultation

Facilitative mediation

Evaluative mediation

Arbitration

Police/social agency

Financial assistance

Facilitation

Litigation

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Note: Strategies are listed in no particular order

 

Some may baulk at the suggestion of the continued use of arbitration and litigation in the resolution of inter-personal conflict. In particular, litigation is excoriated as being lengthy, sometimes expensive and always unsatisfactory since at least one of the parties is left unhappy. These are all valid criticisms. Experience had taught me however, that litigation gives the weak a voice against the mighty, it provides protection to those who seek it, its results are measurable against a standard (the law), if you do not like the result then you have a right to appeal and, it is still the most effective means of developing jurisprudence through the testing and stretching of the law by argument and interpretation. Like the respected anthropologist Laura Nader (1997), I do not believe that confrontational strategies like litigation are antithetical to collaborative strategies like mediation but can in fact be useful where the relationship between the disputing parties is unbalanced (perhaps due to one party having far more power than the other).

 

Let us imagine that my 8-strategy model is to be used to resolve a Stage 4 family conflict involving custody, maintenance and property issues. It might be necessary to take immediate steps to reduce the level of anger and destructive behaviour by referring the parties to some kind of counseling (social agency). Evaluative mediation may be useful at this stage to put some short term arrangements in place such as housing, interim child and spousal support if the parties. This is because evaluative mediation is mediation in which the mediator gives his view of the law or the parties’ chances of success in court. Letting both sides know the court’s approach to the making of interim housing and financial orders might compel them both to come to short-term agreement if only to preserve their good standing in the eyes of the Judge. If necessary, it is also at this stage that Legal Aid and interim maintenance (financial assistance) might have to be arranged.

 

Once the above strategies have resulted in the conflict moving from Stage 4 to Stage 3, the parties then have the capacity to analyze their conflict more deeply. If they have determined that their marriage cannot be saved then the dissolution would be handled by litigation. Custody issues might first need facilitation (to include the parents and immediate family members like grandparents who will now be affected by the new custodial arrangements). A facilitated discussion will identify the most urgent issues and concerns as well as long-term interests. By involving a wider audience, hostilities between the two main players can also be further controlled or reduced since that wider audience can become a de-escalation constituency (person(s) closely associated with the principal parties to a conflict who encourage them to seek more peaceful methods of conflict resolution). It is expected that the conflict can be downgraded to a Stage 2 conflict at this stage.

 

Once the broader multi-party facilitated discussion is over and the parties are at Stage 2 where the relationship between them is much more likely to promote some compromise, then there can be facilitative mediation between the parents themselves to nail down the details of a parenting plan. Facilitative mediation is a much more flexible process than evaluative mediation since it gives the parties the control to negotiate whatever kind of agreement works best for them and this creativity is sometimes sorely needed when crafting plans involving the raising and care of children.

 

Because property issues are dealt with in a much more formulaic manner than custody issues, property issues may benefit more from evaluation mediation to give the parties a reality check about what they can expect from a court dealing with such issues. Depending on what issues arise or remain unresolved after evaluative mediation, then facilitative mediation could be utilized. If both those methods fail to produce total agreement than whatever issues are still unresolved can be sent to either arbitration or litigation. Mediation would have defined the issues so the arbitration or litigation would perhaps go much smoother.

 

“Kathy’s model” does not imply that I will be carrying out the functions of conciliator, facilitator, mediator, litigator or arbitrator all in the same conflict. Much like interventions in international conflicts, different persons might be charged to carry out different functions in a particular conflict. However, just like there is cohesion in the intervention strategies in international conflict because of an overarching conflict management plan/design, there will have to be a planning stage, the length of which will depend on the needs of the parties, in which an intervention plan can be devised.

 

As I go forward to refine and then test this approach in my mediations it is my hope that my experiences and observations will perhaps contribute to the development of family mediation in Trinidad & Tobago and the wider Caricom region.