When clients come for family mediation, it often presents a mixed bag of complaints, worries, fears and claims. They often have not analyzed or organized them, particularly if the conflict is intense, the separation is recent or there has been trauma in the relationship.
Some clients have not spoken with a lawyer yet, and have not identified legal issues. Others have gone to a lawyer very early in the process and have sought to classify all of their issues into legal terms, seeking in some cases to fit round pegs into square holes. Other clients are too confused, traumatized, stressed angry or depressed to have focused any of their thinking about the other person and the nature of their dispute.
An early challenge for the family mediator is to help the client organize their thinking so that they clearly understand why they are coming to mediation, what they need to resolve and what they can let go or resolve later or in a different way. Mediators need tools to help them do this effectively.
NAMING, BLAIMING, CLAIMING*:
The seminal 1981 article by Felstiner, Abel and Sarat defines a framework that remains helpful to family dispute resolution professionals. It pinpoints the starting point of a conflict, considers the things that must happen for it to escalate into a dispute and analyzes the characteristics of that transformation in a way that helps us better understand our clients. This understanding is essential for quality FDR process design.
Conflict, they write, begins with a “perceived injurious experience”, meaning anything at all that is “dis-valued by the person to whom it occurs”.
This definition highlights the subjective nature of conflict; what you may find injurious I may not be bothered by at all.
Once someone has a perceived injury, four things must happen before it becomes a dispute, according to the authors:
- Naming: the person who feels injured names that injury. The article suggests that this is the most important transformation, in that without identifying something as injurious, there is no potential for a dispute. They note that the disputing culture of a society is strongly impacted by what is and is not perceived to be injurious. You can see for example how litigious cultures of countries like the USA are reflected in the way people perceive experiences to be worthy of pursuing a claim.
- Blaming: the injurious experience is attributed to the fault of someone else. To cast blame requires a sense of violation of norms, to make the conduct blame-worthy.
- Claiming: the person who has experienced the injury voices it to the person they deem responsible, and ask for a remedy.
- Rejection: if the claim for a remedy is rejected, a dispute is created.
According to the article, this transformation of conflict has defined characteristics that dispute resolution professionals should understand if they want to become fluent professionals.
Unstable: transformations may be nothing more than changes in feelings, which themselves are unstable and may change repeatedly. The fluid nature of these transformations is in contrast to the legal characterization of disputes, where the facts that underlie claims and rejections are considered to be static and objectively determinable facts, and where the credibility of a claimant or rejector can be questioned if they acknowledge fluidity.
Reactive: Disputes are at their core a claim and a rejection, and so are reactive by definition. Every action results in a reaction, which leads to further reactions.
Complicated: The world in which mediators live involves ambiguous feelings and behaviours, incomplete or inaccurate memories, uncertain and changing norms, changing and conflicting goals and objectives, inconsistent and changing values. We all have different pasts and experiences to shape our perceptions and interpretations of experiences. The institutions in which disputes play out— courts, court-connected mediation, the law— are complex. And emotions and personalities are enormously complex. Human diversity of every kind shapes every aspect of disputing behaviour.
Incomplete: People never completely move on. Perceived injurious experiences are rarely completely let go and relegated to the past. Residual attitudes, learned responses and techniques, trauma and sensitivities all remain to colour later conflict. And the resolution of one dispute can create a new grievance, particularly in family law. Where parties end up in court, a winner and a loser is created, and the dispute is rarely actually ended.
This analysis helps family mediators frame their intake meetings so that they can gain insight into what is driving each client, and how they might structure a mediation to empower them both to negotiate effectively. It provides a framework for mediators to seek the reasonable reasons for the seemingly unreasonable behaviour of their clients. It helps us remain curious, neutral and non-judging as we ask questions of our clients to help them find solutions to the problems caused by their dispute.
* William L.F. Felstiner, Abel, R., & Sarat, A. (1980). The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . . Law & Society Review, 15(3/4), 631-654.