Dealing with the 74%

By Rebecca Clark

“Stress: it’s more common than you think…” That is the quote I noted during a sensitive, brave and informative seminar on Mediation and Mental Health run by Marie Coombes for IPOS mediators recently. The quote worried me(!): nearly everyone I meet is stressed, both in my mediation practice and on a personal level. If it’s more common than I think, then that’s really shocking.

In fact, a 2018 survey by the Mental Health Foundation found that 74% of people feel so stressed they have been unable to cope. And I suspect that most of those questioned were not involved in a dispute.

Since stress is the gateway to many mental health conditions, we are really in trouble. Every week in England, 6 in 100 people will be diagnosed with generalised anxiety disorder. In the UK, over 8 million people are experiencing an anxiety disorder and at any one time around 1 in 6 adults in the UK are experiencing depression.

So, where’s the mediation angle? Well, stress, anxiety and depression can manifest themselves in a mediation scenario in several different ways including sudden changes in emotions (anger, frustration and withdrawal) and in our body language (for example fidgeting, pacing and being unwilling to make eye contact). Most significantly, stress, anxiety and depression can severely impact on someone’s ability to make decisions. Given that mediation is all about exploring options and giving parties the ability to make their own decisions rather than having a court make a decision for them, anything that impacts on that ability, or the output from it, is a worry. After all, we cannot eliminate stress from disputes, and we cannot magically cure people’s mental health conditions.

So, what can we do? We can use the flexibility of the mediation process to best accommodate and protect everyone’s mental wellbeing, whether you are part of the 74% or not. And what that looks like sort of depends, but actually that’s the beauty of it. As mediators, we can engage early with the parties and we can explore what their needs are. Are there reasonable adjustments which can be made which are practical, cost effective and do not cause disruption to others? Do parties need to incorporate more breaks, for example? Is there a time of day when someone functions most effectively? Would a neutral venue be best, or would you prefer to mediate at home on zoom? Do you need access to open space so you can go for a walk? Do you need someone or something with you? The key thing for mediators is to create a space for psychological safety.

Two years ago, I was contacted by two brothers who disagreed on how to run their large manufacturing business. This had led to the younger brother suffering what was described as a breakdown and him being absent from work for a number of months. They wanted to avoid a formal dispute arising and reach a very practical solution to manage the business, which could hopefully then lead to a repair of the relationship between them and the relationships between them and the rest of their large family.

Because I had been told about the younger brother’s mental health crisis and having discussed it with him, I was very concerned to make sure that the process was designed in a way that did not exacerbate his anxiety. From the outset, I was able to spread the meetings out so that we had small sessions over a number of weeks, giving time between each session for reflection and for anxiety levels to dissipate. And initially, this worked well. However, there were also very deep-routed inter-personal and family dynamics in play, along with other undiagnosed suspected mental illnesses and every time we came near to reaching a solution, these would be brought up and thrown back into the mix.

The personal and business issues were inextricably linked. What to do? With a sense of trepidation, I suggested to the brothers that it might make sense to bring someone else into the mediation – a psychologist, or a psychotherapist who could help them work through some of the mental health issues and the family dynamic issues and the impact this was having on them both. They bravely agreed. It has been transformational.

Working with a psychotherapist meant that there was a separation between the deeply emotional family issues (which the psychotherapist dealt with) and the more practical business issues (which I dealt with). If the dispute were a washing machine churning round and round, we were able to separate out the whites from the colours and peg them on different washing lines. The brothers knew that when they were with me, we were talking about the business and when they were with the psychotherapist, they were talking about themselves. By creating this framework and by working closely together, the psychotherapist and I gave the brothers the psychological safety they needed to address their personal issues, which in turn, enabled them to reach a practical solution to the problems they were faced with.

Whilst I accept that this was a more unusual case, it shows the power of a flexible and accommodating approach to a party’s needs. It has taken nearly two years – a far cry from the one day mediation model we are trained in. Was it still stressful: yes, undoubtedly. But were the parties psychologically safe and supported: yes. Was this the thing that unlocked a resolution: most definitely.

Perhaps if stress is more common than we think and so many of us are struggling with anxiety, depression and other mental illnesses, we need to be more upfront about how we can help ourselves and each other. It’s not about labelling or diagnosing but about exploring what support can be incorporated into a mediation so that the process is fair and has the best chance of a successful outcome. I can’t promise a stress-free mediation. Disputes are stressful. What I can promise is empathy, early engagement and reasonable adjustments so people can feel secure in a process which may result in a less-stressful tomorrow.