The issue is never the issue

The holidays provide great opportunity for pondering over matters and this year I have been thinking about issue identification in mediation.

Over many years, I have listened to excellent mediators telling students “remember the issue is never really the issue” and I have pondered why, if this is the case, do we as mediators spend time identifying the issue and more importantly spend a lot of time and money educating ourselves on questioning techniques to assist the process of identifying the issue. What may be even worse is that I have been guilty myself of spending time with students learning mediation on this subject.  Unfortunately, I have also sat watching many mediators "Identifying the issues” for the parties using their words and often on the basis of their own perception or judgement as to what the issues are.

Mediators will say that issue identification is an essential part of the process- that the issues are identified following the parties opening statements and are best described as simple words.  In some family mediations, the mediators often identify communication as an issue. I have seen that issue explored in great depth and a lot of brainstorming to come up with modes of communication designed to reduce conflict between the parties. These modes might include email or a communication book or diary which can be used by the parents to keep the other parent informed about what food the child has had, what activities have been completed and upcoming events. These modes are chosen because there is no need for direct contact between the parents.

Often these communication books are transferred by the child or at best in the child’s bag. I wonder how the child with highly conflicted parents feels when the parent takes out the communication book and reads what has or has not been put in the book. If we were looking at the issue from the child’s perspective maybe the communication book could in itself be the issue. I have also seen mediators assist parties to come up with complex communication plans where the parents agree to timeframes for responses and processes for providing and responding to information.  In my experience, these processes rarely succeed long term.

Back to the questioning techniques – mediators are taught to ask open questions and elicit the best information using this technique. The strategy makes sense in principle but when we examine what an open question by a mediator really is, we need to recognise that the question will always be formed and therefore constrained by the mediator’s own perception and bias. If the mediator is a lawyer it is likely the question will be informed by experience in the Court of what a Judge might possibly order and therefore taking communication as an issue, it is likely the open question will be about the “mode” of communication. Something like “How would you like to communicate on matters affecting the children?” A Counsellor might -based on their training and experience - ask “How will you feel about or manage communication between you?” You see with these two examples that these “open questions” already have a significant slant depending on the parties involved. 

In my opinion communication is rarely the issue and that the issue is far more fundamental than that.  For some parties, the issue will be that they have finally got the strength to leave an unhealthy relationship where they were not able to have their voice heard or views listened to and the issue in that case may be that it is detrimental to the person’s health and wellbeing to have to communicate. It could also be that the grief and hurt which occurred at the end of the relationship has not resolved and that it is too painful for the person to communicate. In families where there has been addiction or mental health issues, it may be that the feelings of the partner who has supported, cajoled, yelled at and tried in many ways to find a solution to the problem simply cannot do communication anymore.

Even when people have developed the strength to move forward, the reality of sharing the parenting of children is that parents must communicate for the sake of the children. They need to do this using many modes and often need to communicate frequently and sometimes urgently. Similarly, in a workplace setting, people who have been involved in conflict will need to repair the relationship and find a way to communicate for the sake of their employer and other people in the workplace.

I’d like to suggest that parties in mediation would get much better results if instead of identifying the issues mediators asked the parties “What do you need to sort today?”

The difference is that by asking that question it is truly an open question without any bias and opens up the opportunity for parties to say things like “I don’t trust him/her” or “I struggle managing my own feelings when I have to deal with him/her”.  This identification allows a conversation about what needs to be done on a practical level to manage care of children in a low or no trust environment and what support needs to be in place for the parents to deal with or recover from the relationship issues. It does not make a parent a victim or perpetrator it just recognises the reality of the difficult situation both have to manage and even more importantly the lives which the child or children have to live.

You may well ask how this is different from identifying the issues? The answer may be nothing if the mediator is skilled and prepared to drill down on the issues to identify the underlying issue. However, in my view, the difference is that recognising early in mediation that nothing is an issue and that there are simply conversations to be had, will allow the parties to focus early on collaborative problem solving.  This can also assist parties recover their ability to talk with each other.   The question also removes blame. For example, where there is an addiction problem, the problem to be solved is how can the child enjoy a safe relationship with the parent who has the addiction problem. The parent with the addiction is not put in a corner, the other parent is relieved of full responsibility- addiction is recognised as a medical need and like any other medical need it can be discussed openly with a plan put in place to ensure that the child know what the plan is. Many years ago, I worked with an amazing psychologist who devised a safety plan for two children whose parents both had serious medical and mental health issues. I admired her approach and the establishment of the “what if” committee which was a group of people including other family members who the children could turn to if required

This sort of constructive “what if” approach is useful in building and construction disputes In a building and construction dispute there may have been a mistake made by the builder, or the architect or homeowner which has resulted in the relationships between the parties breaking down and the project stalling. In this situation, if the mediator was to ask the question “What needs to be done today to get the building project restarted?” that would allow the focus to be on what needs to be done rather than whose fault is it. 

It is this sort of problem solving approach which is invited by asking “What do you need to sort today? How do I know this? I’ve done it and it works!