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The importance of language in the mediation process

Posted: 16/01/2023

Communication, or more precisely, a lack of it, is often at the heart of relationship breakdown. While the catalyst for a separation might ultimately present as something else, the origin often starts as an inability to connect or a tendency to misunderstand each other, or both.

Once the decision to separate is made, there is immediately a great deal to sort out emotionally and practically, both in relation to the family’s finances and any children the couple parent together. It is hard to overstate how difficult this can be. Even in an amicable separation, there are still difficult conversations to be had and the language and words used within those interactions are crucial.  

In mediation two people, who are often struggling with their own communication, use the assistance of a neutral third party (a mediator) to help them to resolve some, or all of the issues arising from relationship breakdown. This article was inspired by the thought-provoking paper Language Matters: A review of language for separating families. While the paper is intended to feed into the entire family justice system and beyond, there are  key takeaways for mediators, and for the couples participating in the process.  

Simplifying legal language

The family law team at Penningtons Manches Cooper includes lawyers who are also trained mediators. The combination of legal and mediation expertise means they are familiar with the terminology used by the courts and can help couples to understand impenetrable acronyms and legal shorthand

The decision to use a specialist family lawyer as your mediator is sensible as, although these specialist mediators cannot advise the couple individually or together in their capacity as a lawyer, they can provide the couple with general legal information within the sessions. That said, lawyer-mediators must be mindful that as experts in family law, there is a risk of drifting into legal jargon. They should be committed to ensuring that language and phraseology can be understood by everyone in the process.

It is similarly important to simplify language if one party in a couple is more financially literate than the other. Explaining financial circumstances in as straightforward a way as possible (avoiding business jargon and acronyms) will lead to quicker and better results. One of the benefits of mediation is being in the same space together, be that in person or remotely. If you do not understand something, or the mediator does not understand, a simpler explanation can be requested immediately.

Focusing on outcomes

It is easy to become fixated on areas of disagreement. However, concentrating on the language of mutuality can be an extremely helpful way to focus a couple’s minds on their collective aims and objectives. It can also help to avoid unnecessary and damaging friction. Where there are children involved, the couple often want what is best for the children and wish to put them first. Effective questioning, which focuses on the children, can be used by mediators to help the couple to see their areas of agreement.

The most effective mediators will focus on keeping the children ‘in the room’, by, for example, questioning how they might feel if a particular arrangement was proposed. This approach allows the couple to work together with the children at the front of their minds. It is also important for couples to focus on why they have chosen to come to mediation and what they want to achieve from it. Most often it is to allow them to be the authors of their own futures, to leave a relationship with dignity and with their ability to communicate still intact.

Avoiding provocation

A couple will know each other far better than any mediator can hope to in the short period of time that they will all be working together. There is a tendency for couples to repeat the dynamic of their relationship in the mediation setting, which was often the reason for the relationship breakdown in the first place. It is important for mediators to recognise this, to address this issue head on and to encourage couples to move away from this dynamic towards something more positive and constructive. The use of language is key to this.

Couples know how to push each other’s buttons and use certain words that might be provocative. A phrase that might seem fairly innocuous to the mediator might trigger something deep down. To get the best from the mediation process, it is always worth considering the impact on the other person of the words used. Mediators are mindful of their use of language and skilled in reframing the way in which one person has expressed something to help the other to hear it better.  

Looking forward

It is normal for separating couples to want to dwell on past events while they are working on their future. However, the emphasis of mediation is to look forward and to assist a couple in building a positive outcome. To do this, everyone involved needs to shift their mindset and style of language, moving away from blame and towards solutions.

It is extremely brave to be able to rise above feelings of fault and blame, to make concessions and to step back and look at the big picture. Indeed, there are deep psychological barriers to doing so. Emotions associated with a concession include humiliation and fear and it is essential to suspend one’s immediate needs for future gain. This can be difficult but there can be huge psychological benefits to reaching a decision about the future by agreement. Mediators will ensure that the couple keep focusing on the future rather than revisiting past events.

It feels right to conclude with the opening sentence of the Language Matters paper: ‘The words we use shape our mindsets, which in turn affect how we think and behave.’ Choosing our words wisely both as mediators and separating couples will unquestionably lead to better results. Taking the time to really think about the language that we use and the words that we choose is always worth it - language really does matter.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP