Perceptions and Stories

Eric and Fran are in conflict.

They've always had a hard time working together, but lately the frustration and tension has spilled over to colleagues and family members on each side.

Fran catches you first, her story emerging in messy, manic detail. Eric, she claims, is acting unreasonably. He is incompetent and he is being childish.You know you are only hearing Fran's side of things, but still, you have a hard time imagining how Eric could explain his behaviour. It seems inexcusable, and you tell Fran she is right to be so upset.

Eric calls you later that day. He says he doesn't want to speak ill of Fran, but demands that you hear his version of what happened. You listen, as Eric describes what "really happened, " and you soon find yourself confused. Eric, it seems, is the real victim here. You try to resist the urge to take Eric's side, but give in: "you are right to be so upset, you tell him.

Moments later, you get an email from a mutual friend, who asks if you know anything about what is going on between Eric and Fran. " I've spoken to both of them," you write, and then realize that you simply haven't figured out how to reconcile what you've heard so far. You know both Fran and Eric well enough to know that neither is lying, or even intentionally shading the truth.And yet their descriptions of the dispute could not be more different.

The Brain as a Story-Based System

What's going on? Artificial intelligence researcher Roger Schank puts it well: "Human memory is story-based." Far from simply reflecting or recording reality, our minds engage in a complex interplay between what we perceive and what we already know, unconsciously adding and deleting information in the service of the story. Disputes occur when the stories we tell about what's happening-who's right,what's fair, who's to blame-diverge.Each side retreats to their own narrative which describes their experience of "reality," and the dispute intensifies.

Extracted from Heen & Stone" Perceptions and Stories"; The Negotiator's Fieldbook at p 343.

Mediation Matters-What is mediation all about?

Parties sometimes get confused as to what Mediation is and what we do.

To take the example of a couple with a family law dispute, we initially have a confidential intake with each party.This usually takes one hour and enables us to explain the process, develop some rapport with the party and gain some insight into his or her perspective of the dispute.

If one party approaches us then we will usually have an intake with that party and if we consider the matter suitable for mediation, will invite the other party to also participate in a confidential intake.

If both parties are happy to attend mediation then we will proceed to schedule a four hour mediation, usually but not always on a separate day.

We are neutral and independent.The way that I normally explain "independence" is that I have had no previous connection or association with either party and by "neutrality", that I am not on anyone's team.It is absolutely vital that the mediator retains this independence and neutrality throughout the mediation.

As mediator, I use my experience and skills developed over a long period to help the parties resolve their dispute without needing to go to court for an outcome.If successful then the parties will save substantial legal costs and the stress and delay arising from court proceedings.The parties also have a better chance of being able to communicate in the future if they can keep their dispute out of court.

The mediation usually goes for four hours, however if the parties feel they are making progress then they can extend the time.

Usually the mediation is conducted by a single mediator, however we recommend a co-mediation model in some circumstances.Some of our mediators come from a legal background and some from a social science background and each has particular skills and training which they can bring to the mediation.We also offer a child-inclusive model and this is an option that parties sometimes want to explore particularly with older children.

We are happy to explain all our processes in detail so that parties come to the table with a good understanding of what is involved and how we will conduct the mediation.

Our job as mediators is to help the parties reach a resolution.We are not "pretend judges" and it is not our role to make decisions for the parties.

If the parties have engaged lawyers then we welcome the involvement of the lawyers in the mediation.It is entirely a matter for the parties if they want their lawyers to be involved and we are happy either way.

The total cost for two intakes and a four hour mediation is $2310 including GST and this can be shared between the parties.

In future blogs, I will share more information about our processes.

I also invite you to look at our website www.brisbanemediations.com.au

Help in resolving your dispute is only a phone call(07 3839 7400) or email(resolve@brisbanemediations.com.au) away.

Mike Emerson

Estate Mediations

Mediation Matters

Today I am at "Round the Table with Mike" which is a free service for people to call in and chat with a mediator about the process generally or to discuss any particular issues.

Round the Table with Mike takes place on the first and third Wednesdays of each month between 4pm and 6pm at the Brisbane Mediations Dispute Resolution Centre.

Patrick Wedge, one of our mediators has called in for a chat. Patrick was in a past life, the Deputy Public Trustee of Queensland and so, as one would expect, has considerable experience in Estate Mediation.

As well as being on our panel, Patrick conducts his own Mediation practice.

I asked Patrick for his opinion as to the cause of estate disputes and his reply was as follows:

" One of the principal reasons for disputes in deceased estates is that people's expectations have not been met. A person may have expected to receive a greater share in an estate or may have been left out completely. Where there is ill feeling with the other beneficiaries in settling the issue, a dispute arises".

I then said to Patrick: "At what stage should people seek to mediate?  Should they mediate as soon as the dispute arises or should they wait until some formal court process is initiated?

 Patrick replied:

"The sooner the parties involved have the opportunity to discuss the issues, the better off they will be emotionally and a solution can be negotiated at mediation".

I once heard estate litigation described as "Family Law from the Grave", and certainly estate disputes can often give rise to the same high level of emotions as Family Law. Mediation with a competent mediator such as Patrick, offers the opportunity for resolving the issues without the high costs and delay of litigation. If handled sensitively, mediation also offers the opportunity to repair the relationship between the disputing parties.

The important thing is to seek advice before everyone becomes too embroiled in the dispute.