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Therapeutic Justice in Family Cases : The Mediator (Part 4)

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By Susan Tay, Founding Partner of OTP Law Corporation, Co-Founder of PracticeForte Pte Ltd

This is the 4th part of a series on therapeutic justice and how it may be applied in family cases in Singapore. You may read Part 1 here, Part 2 here, Part 3 here.

In these parts, we dealt 1stly with how the essence of Therapeutic Justice for family cases is in the healing. The next parts involve the perspectives and roles of the different players involved and they are namely, The Lawyer, The Accountant, The Mediation Advocate, The Neutral Evaluator, The Counsellor and in this article, The Mediator.

In the context of these articles, family cases will be restricted to divorces and the issues arising out of a divorce i.e. property division, financial support and importantly, children’s matters including custody, care and control, access.

Therapeutic Justice and Mediation, A Common Ground[1]

Therapeutic justice and mediation have been described as sharing striking similarities [2] . Both advocate an alternative approach which argues for an opportunity to use the law and the legal system in a way which brings about positive therapeutic effects on individuals’ well-being.”[3]. A mouthful.

Allow me therefore to simplify: mediation is championed as a key therapeutic approach and if I may paraphrase Professor Omer Shapira (whose views I share), the following are the therapeutic values inherent in the mediation process:

  • To mediate instead of litigate definitely reduces the fatigue, anxieties, anger and any other negative psychological effects for parties in dispute. These exhausting feelings are your constant companions if you are compulsive about trying to prove all the “I am Right and You are Wrong”. That obsession is unfortunately, an inevitable part of adversarial legal proceedings.
  • To mediate means you exercise control and power over the terms that will govern how you move forward. You actively participate in all decision making.  Good mediated outcomes generate high satisfaction from a perception of a fair process while litigation often means feelings of frustration and disempowerment since it is someone else telling you what is right/wrong. Personally, I have had enough experiences with litigation to know that what a judge orders can often be what none of the parties really want.
  • To mediate a dispute toward a settlement often result in enduring resolution. Parties tend to stick to the terms of a mediated settlement well, because of the earlier mentioned values like perception of fair, satisfied, my own decision. This means the dispute is put to rest with no need of future litigation, thus dousing all the emotional stress involved.
  • To mediate will mean the focus is on satisfying the parties’ needs, not on their legal rights. We can address psychological and emotional needs, which is often the problems parties want solved. Most will agree that what the law says is really often secondary to parties’ real wants.
  • To mediate will teach parties how to manage a dispute, which in turn will benefit them in handling future issues. Problem solve between themselves, no more resorting to court again.  This educational experience, according to Prof Shapira, may be considered a therapeutic outcome of the participation in mediation.
  • To mediate can reduce the damage to the relationship and often, can repair, restore, rehabilitate and eventually, heal.

Those are all sound reasons why mediation is used as the 1st port of call for family disputes. The healing potential is real.  One day soon, it will also be expected of all family mediators to not just focus on parties reaching a settlement.  Our aim must be for parties to strive for improved relationships, to be great co-parents, toward better understanding and respect.

Mediation, An Essential Tool

That mediation is an essential instrument in the tool cabinet of Therapeutic Justice is therefore obvious.

A good mediation process can be likened to having eggs for breakfast: Inexpensive to buy, easy to prepare, and completely healthy.

In the Singapore Family Justice Courts, mediation twinned with counselling are often the default pathways for a peace approach to resolving disputes.

Mediation, the Start Line to Rebuilding Trust?

Now don’t get me wrong. Mediation is not all about rebuilding trust alone.  We want to problem solve and which mediator does not want a settlement, signed and sealed by the end of the mediation session? It is how a mediator is traditionally assessed after all.

Nevertheless, a settled agreement without understanding the root of the problem may unravel any agreement in less time than you can say “mediation”. I had a settlement that came undone the very next day. My holy grail is truly the pursuit of enduring agreements.

As a practitioner focused on resolving family disputes, all my acrimonious cases came with deep seated distrust of each other.  A whole load of problems spiralling into a tornado ensued as a result.

For me therefore, the real power of mediation must be beyond just the process itself. Importantly, a good mediator must move parties toward a journey of rebuilding trust.  

Just 2 important ingredients before we can serve up a good mediation outcome:   1st, sincere participants who will engage in the process honestly. 2nd, a skilled mediator who is interested in maximising the parties’ well-being, not just in pressuring for a quick settlement agreement.

Mediator, An Important Player

It seems like a Herculean task, perhaps even an impossible one. How can mediators be expected to suddenly generate trust between two parties who have completely lost their faith, maybe even love or respect for each other in short mediation sessions? And when trust is severely breached and damaged?

There are 3 things crucial to this trust building exercise an effective mediator must make happen:

  1. Tool, Not Weapon: Guide the parties toward a new way to communicate with each other. The process itself is already designed for open, hopefully honest conversations. The confidentiality obligations ensure a safe space to share; whatever information or unaccepted offers exchanged during mediation cannot be used in litigation. Private sessions with one party provide an added layer of confidentiality where even the mediator cannot share with the other party whatever you tell the mediator.  But a good mediator will be able to encourage even more openness starting with parties making small arrangements between themselves. In one Hague Convention case where a parent took their child out of the country, we managed small steps like sending presents by the left behind parent to the child and opening the presents through video calls so the child’s reaction can be witnessed.  Encourage dealings that stop short at blames, openness without hurtful words; accepting feedback without suspicions. Parties must understand that they can talk about and check information and that there is nothing wrong with that. That information is no longer a weapon against the other but a tool to help one another.
  2. Well-being, Not Necessarily Best Interest: In mediation, we help parties to remember that being able to trust will mean peace of mind. Trust? How? That’s the intuitive response, because in most broken marriages, one party often felt betrayed by the other. It’s because I trusted too much! I was so stupid! Well, that was the past, as spouses, maybe. For the way forward, perhaps as co-parents, they must recognise the critical importance of trust or no resolutions will be enduring. You think you have a settlement but any kind of distrust will destroy it in a second. And without an enduring settlement, there cannot be peace. In other words, make a joint and conscious decision to put some faith in the process and TRUST. Put aside best interest, because what’s my best interest may not be yours. Invest in well-being instead because peace is universal and will need two to clap. This commitment is both sides, not just one side.  We always say: Give this a chance; and then the next step and the next and before you know it, you are walking that pathway to trust, then peace, then healing, a step at a time.
  3. Legal, Not Points of Law – Contrary to popular understanding about legal proceedings, this is an important element in your trust journey. Good legal advice can help us formalise the agreement such that it is enforceable. Trust may take longer than the rebuilding of Rome to re-establish. The security to the parties are that they are not just relying on each other to keep their word. They will also have the law behind them. Being prepared to commit to an enforceable agreement definitely is an important step to give the assurance that you are serious about keeping your word.

Nobody expects trust to be rebuild in one day but remember, we must never underestimate the power of planting a seed.

[1] “Joining Forces in Search for Answers: The Use of Therapeutic Jurisprudence in the Realm of Mediation Ethics” Pepperdine Dispute Resolution Law Journal, Vol. 8, Iss. 2 [2008], Art. 2 by Omer Shapira

[2] Ibid at pg 3

[3] Ibid at pg 4