Jenny Beck reflects on her experience of mediation to resolve workplace and family conflict.

Nelson Mandela spent 27 years in prison in South Africa, many of them on harsh, isolated Robben Island in Table Bay. In his autobiography Long Walk To Freedom he says that in those long, lonely years he realised that the “enemy” wasn’t going to be vanquished by force of arms; his mission was to win people over using “heart and mind”. So he made a deliberate choice to use words to explore political accommodation, and it was from a position of emotional strength that he entered into talks with the White-led government.

Nelson Mandela’s example inspires me in my law practice to stop to consider the other side’s position constructively and explore alternative outcomes. Above all, to talk. Because when you talk — honestly, with your heart — barriers are set aside, and astonishingly, people start using the same language.

Mediation Is the First Step

I’m a family and employment lawyer practising in Dunedin, and I can tell you that every day is filled with conflict — I wouldn’t have a job otherwise! The question is what you do next, after the battle lines are drawn.

When I was a “rookie lawyer”, my mentor Frazer received a remarkably short letter from the opposing side in a building case, which consisted of these four words and nothing else: “See you in Court!”

This isn’t actually how it works, Frazer explained to me. We’re obliged to explore settlement before people work themselves into positions so entrenched that there’s no coming back. This was an entirely fresh thought to me being schooled until that point in LA Law and Boston Legal!

In the employment sphere what typically happens is that the disaffected employee by letter raises a personal grievance usually based on unfair treatment of sorts, for example discrimination, lack of proper process, bullying, harassment, or possibly even unfair dismissal. The employer responds by letter. The next step is mediation where employer and employee meet over the table with a trained mediator leading the discussion.

I’ve had employee clients refuse initially to attend such a meeting wanting rather to “stick it to them, let’s go to Court!” The last thing they want to do is exchange mere words! I have to explain to them that talking can’t be avoided. That the law requires the two sides to eyeball each other, and try to reach resolution.

Honestly, it feels miraculous to me sometimes. Those employment mediators are skilled at helping both sides open up and listen with their hearts. “Feeling heard,” I’ve realised, is a great thing. In perhaps 90 per cent of cases the parties end up signing a Record of Settlement, bringing the dispute to an end. The parties usually leave the building separately, their haste indicating an urgent need to leave the past behind. But in a few cases there are handshakes all round and tears suggesting a deeper conciliation.

At such times I stand amazed at the capacity of human beings to forgive one another, or, if forgiveness isn’t possible yet, to move on from the past. Indeed, sometimes it feels like holy ground that we’re treading.

Family Court Encourages Talking

In 2014 broad changes were introduced into the process of handling parenting disputes in the Family Court. In a non-urgent case parties are required to attend Family Dispute Resolution (FDR), essentially mediation, in what is described as an “out of Court space”. The idea is that in this non-threatening environment the parties will talk; they’ll look carefully at each other’s viewpoint and, hopefully, reach a mutual position. Above all, they’ll consider what’s in the best interests of their children. If the parties reach resolution at FDR, their accord is set out in a Parenting Agreement and they might never have to go to Court.

But if they do, the opportunity for dialogue continues through the process. Even after Court proceedings are issued, we organise Round Table Meetings (RTMs) for parties and lawyers, which are held on a “without prejudice” basis, ie, the discussion is full and frank and any concessions made in that environment can’t be held against anyone later.

Advice for Entering Mediation

The emphasis on talking and the effect it has of slowing things down is difficult for some clients to take. They urgently want a third party — the Judge — to make a pronouncement.They want punishment for the other party for being a “useless parent”. They want vindication for themselves. They don’t see the exchange of words as giving justice.

I challenge such thinking. A lot depends on what you carry with you into the mediation/RTM, I tell my clients. I say further:

• Hear what the other side has to say; listen with your heart not just your head.
• Know what your bottom line is and what you can afford to give away.
• Then do give it away but be strategic about when.
• Help the other side (and yourself) be the best, most effective parent possible.
• Don’t be scared of showing emotion because “feeling makes us.”
• But don’t be so stuck in the past that you can’t move forward into the future.

While giving my clients support and encouragement along those lines, I also pray hard, because I know God uses discussion and open hearts to shift people who are “stuck,” and give them a vision for a different future for themselves.

Surprise in the Divine Presence

Indeed, God can intervene at any time, changing hearts through talk, even if the proceedings reach hearing. Sometimes spiritually-laden events occur in the Court room unlikely though that might seem. Here’s an example from a few years ago.

My client Mr NSR (Not So Righteous) was in the witness box. He’d listened to the evidence; he’d given some himself. He was crying suddenly out of horrified regret at all the losses sustained by the family, and his own contribution to the mess before him. The Registrar popped across the space to give him tissues.

The Applicant Mrs NSR was sitting behind me. I could hear her weeping. Beside me the young woman who’d accompanied me as junior suddenly couldn’t bear the conflict and pain of it all. She reached for a tissue. I could feel a lump rising in my own throat. Ending my re-examination I fought against stinging eyes. The Judge took a long, long while. When he spoke I could tell from the timbre of his voice that he was shaky without and within.

This was a luminous moment, one of potential healing. It seemed that the opportunity for transformation had been offered unexpectedly in a wholly unfamiliar place because people’s ears and hearts were receptive. It was as if God’s Spirit was hovering near, suggesting that this could be a choice for wholeness and forgiveness for all of us, not just the parties.

Very often Judges give advice to the parties before them in two simple but essential words: “Keep Talking." Because it’s in the commitment to a posture of discussion, exchange and openness that the magic happens.

Tui Motu Magazine. Issue 261 July 2021: 8-9