Counselling and Mediation – Celebrating the Differences

July 29, 2013 at 4:18 PM

A presentation to the Auckland Family Courts Association

Parnells on the Rosegarden
17 June 2008.
Nigel Dunlop – Barrister and Mediator

Most of you will be aware that a couple of years ago, the Family Court Mediation Pilot was conducted in four Family Courts in New Zealand: North Shore, Hamilton, Porirua and Christchurch.

The purpose of the Pilot was to trial private mediation in the Court. Mediators were contracted to provide mediation services in much the same sort of way that counsellors have for many years been contracted by the Court to provide counselling services.

I was privileged to be one of seven mediators under the Pilot in Christchurch. Five of those mediators came from counselling backgrounds and two were lawyers, myself and Angela Corry, who many of you will know.

In each of the Pilot mediations, of which I did about 40, I would interview the parties separately some days or weeks prior to the mediation, in order to prepare them for the mediation conference.

At the commencement of those sessions, before I had had a chance to say virtually anything, parties would often say to me "Nigel, I have already had mediation and it didn't work, so why should the mediation with you work?"

It would turn out inevitably that what they had was counselling, not mediation.

Let me hasten to say, that I don't actually accept that in these cases the counselling was "unsuccessful". Whilst the counselling may not have prevented the filing of proceedings, or given rise to the settlement of proceedings, it is very likely that the counselling had many benefits, including the resumption of communication, the restoration of trust, the clarification of events and viewpoints, the opportunity to vent, a better understanding of feelings and emotions of both self and others and the development and consideration of ideas and proposals.

Without a doubt, prior counselling enhances the prospects of successful mediation.

Nonetheless to those many parties who said to me that they already had mediation, I of course had to reply "no, you have had counselling, not mediation". As quick as a flash the question would come back "what's the difference?"

And that, ladies and gentlemen, is not a straight forward question to answer.

Why should that be? Why isn't the question "what's the difference between counselling and mediation?" capable of a simple answer?

I think that there are a number of reasons: [B]

Counselling is not a standardised, homogeneous process; there are different models and styles of counselling.
Nor is mediation a standardised, homogeneous process; there are likewise different models and styles of mediation.
Counsellors and mediators may adopt an eclectic approach, utilising aspects of different models and styles.
There is a degree of overlap between counselling and mediation particularly with regard to:

the micro skills applied by counsellors and mediators
certain outcomes or "by products" of the two processes

Some counsellors are trained in mediation and some mediators are trained in counselling.

I am not qualified to speak with any authority on different models or styles of counselling, but understand that there are at least two fundamental schools of counselling, the psychodynamic school and systemic school.

The psychodynamic school of counselling gives weight to psychotherapy which has attachment theory as its underpinning. That theory asserts that the earliest relationships, particularly with the mother or other primary person, colours relationships thereafter. Thus, for example, a husband who as a child was deprived of motherly warmth or approval will crave that in his wife at the risk of over dependency.

The systemic school asserts the importance of regarding families as dynamic systems, where the behaviour of individual family members can be substantially explained by the behaviour of other family members, both individual and collective. Thus, for example, a child might develop anexoria as a means of drawing attention to herself in an attempt to focus the attention of fighting parents on her, rather than themselves, and thereby reduce that fighting.

But, as already mentioned, just as there are various models of counselling, there are various models of mediation.

Models of mediation include: [C]

Therapeutic – where the mediation's primary purpose is to heal emotional and other wounds (for example where abuse has occurred in a family).
Transformative – where the formal resolution of the dispute is accorded less importance than what the parties might learn from the process, so that the process gives rise to empowerment of the parties.
Facilitative – where the focus of the mediation is moved away from the legal rights of the parties towards their respective and common interests and those of the children (for example, a solution may be reached in a day to day care dispute which does not necessarily reflect what a court would decide, but which suits the needs of the family members concerned).
Problem solving – where there is a clearly defined issue and the scope of the mediation is limited to resolving that issue (for example as to whether children should be permitted to locate to another country).
Evaluative - where the mediator is an expert in the subject matter of the mediation and guides the parties to a settlement based on his or her assessment of the merits of the parties' respective cases (for example the respective rights of the parties in a relationship property dispute).

I am not sure of the proportion of counsellors in New Zealand who would tend to display allegiance to one of the two different counselling schools just mentioned.

But the mediation model espoused by the two professional mediation bodies in New Zealand, AMINZ and LEADR, and followed by most mediators in New Zealand, is undoubtedly the facilitative model.

And so what are some of the similarities between counselling and mediation?

Necessarily, I must apply generalisations, given the variability of both counselling and mediation. Some types of the two processes may bear greater similarity with each other than other types.

For example, a psychodynamic counsellor may have some kinship with a therapeutic or transformative mediator, but little kinship with an evaluative mediator.

However, given that most New Zealand mediators more or less follow the facilitative model of mediation, in the remainder of this presentation my references to mediation will be to the facilitative model.

Now back to the similarities between counselling and mediation.

In both processes: [D]

The practitioners apply good listening skills.
There is an expectation and requirement that parties are respectful and non-abusive of each other.
Co-operation between the parties is promoted.
The practitioners are attempting to benignly assist the parties.
Sessions are often tense and involve emotional venting.
Interpersonal relationships are important.
The interests and welfare of the children may be central.
The restoration of communication and trust between the parties may be a goal or a by product .
The physical and emotional environment is intended to be as non-intimidatory as possible.
Privacy and confidentiality apply.
Evidential privilege applies.
The specific reasons for the processes may be the same (for example to assist the parties agree on Christmas contact arrangements).
The parties are encouraged to reach their own solutions
Some degree of guidance may be provided by the practitioner.
The goal is for the outcomes to be genuinely and willingly subscribed to by both parties, so that they are durable and not later undermined by either party.
The discussions take place in "the shadow of the court".

And so what are some of the differences between counselling and mediation?

Differences include the following: [E]

Counselling usually occurs over a series of sessions of approximately 1 hour duration; by contrast mediation usually involves one session only, sometimes of extended duration (8 hours or longer).
Mediation usually takes place with the parties and other attendees sitting around a table, whereas in counselling lounge type seating is more the norm.
Usually counselling involves at most two or three people being in a room at any one time, whereas mediation may involve large numbers in attendance (mediator, parties, lawyers, children, new partners, support people and experts).
Counselling may involve both separate and joint sessions, whereas mediation is essentially a joint process (albeit that sometimes "caucusing" occurs).
The parties are not legally represented in counselling, but frequently are in mediation.
The children may be legally represented in mediation, but not in counselling.
Mediation is negotiation, whereas counselling may be better characterised as an engagement, exploration or facilitation.
In counselling, the "conversation" is often with the counsellor, whereas in mediation (i.e. negotiation) the "conversation" is necessarily between the parties.
In counselling there tends to be a primary focus on self-knowledge and personal growth, but in mediation that is regarded as a secondary outcome only.
In counselling there is usually an inner personal focus, whereas in mediation there is usually an outwards non-personal focus on the dispute itself.
In counselling, discussion is often focussed on examining the past, whereas the focus in mediation is on the future.
The mediation is preceded by the parties signing a lengthy and detailed agreement to mediate, setting out the terms of the mediation, but this does not occur with counselling.
In mediation legal considerations tend to have greater prominence than in counselling.
Mediations tend to follow a structures process (for example, the mediation "triangle") whereas counselling tends to be more free flowing, fluid and unstructured.
In mediation parties may enter into formal, legally binding agreements, whereas in counselling they cannot.

This is what I said in an article in the March 2006 issue of the New Zealand Family Law Journal (Breaking New Ground – observations on the Family Mediation Pilot): [F]

"But it seems to me that the following might be said of counselling and mediation conducted on referral by the New Zealand Family Court. The former process lays emphasis on the parties exploring and talking through issues and often past events over a number of sessions in the presence of no one apart from themselves and the counsellor, who applies a reasonably unstructured, albeit discerning process, in respect of which the legal context tends to remain in the background rather than foreground, with a view to the parties achieving individual and collective understandings and accord, and a lessening of pain and conflict. By contrast, the mediation process involves a one-off, hard-headed, child-focussed, future-focussed, negotiation session, often attended by many persons, conducted pursuant to a detailed contract by a mediator who carefully structures the session, in a pre-determined manner, with the intent that the parties will conclude by signing a final, binding and enforceable agreement which explicitly addresses the relevant legal considerations, such that the proceedings before the Court are thereby formally brought to an end."

And so what would I say to those parties who ask me in the preparatory mediation sessions "What is the difference between mediation and counselling?" Of course I did not have the time to give them a treatise, and so I would say something like: [G]

"You probably had a number of counselling sessions, but you only get one mediation session. As you get only one shot at this, don't blow it.

The lawyer for the child/ren will be at the mediation and s/he will keep everyone focussed on the children. And, other lawyers may be there too which will be helpful. By contrast there were no lawyers at counselling.

I am not a counsellor, I'm a mediator. And so whatever may have happened at counselling, this is going to be different.

Your counselling sessions probably lasted about an hour each, but this mediation might go for three to four hours or even longer.

You are going to be seated around a boardroom table, not sitting in comfortable chairs as might have happened at counselling.

Before the mediation begins, everyone is going to have to sign a formal agreement to mediate which is a binding legal document, which all participants, including myself, have to observe. This signifies commitment to the process by everyone.

Statistically, mediations have a high settlement rate."

At its most simple: [H]

Counselling is about enhancing personal growth and understanding through open textured discussion in order that the parties can better cope and deal with life's challenges particularly the immediate presenting ones.
Mediation is about negotiating a defined dispute to a settlement.

Thus, counselling and mediation are in my view fundamentally different. [I]

They have different objectives. For counselling, the objective is to achieve improved quality of life and superior decision making. For mediation, the objective is to achieve a formal settlement to a defined dispute.

They have different methodology. Counselling utilises discursive, fluid and exploratory discussion. Mediation utilises a structured negotiation process.

In my view, the differences between counselling and mediation are of practical importance. Were they not, I would not have chosen to talk about them today!

My thesis is this: [J] It is important, especially having regard to the provisions of the Family Court's Matters bill, that all family law professionals understand and maintain the differences between counselling and mediation in order that the right process is decided for the right case at the right time to ensure the effectiveness of both processes and best exploit their respective strengths.

As most of you will be aware, the Family Court's Matters bill, currently awaiting its third reading, envisages the introduction of private mediation in the Family Court. [It does not propose the abolition of judge-led mediation, in my view, rightly so, because it does not make sense to remove an option which may suit some cases. But I digress].

The bill is structured such that where the law currently provides for counselling, mediation may be provided as an alternative or additional option. The bill does not specify the criteria by which counselling or mediation is to be chosen.

I suspect therefore, that in the event of the mediation provisions of the bill becoming law, it will mainly be up to counselling co-ordinators and case managers to decide which of the two processes should be utilised in individual cases, and if both are to be utilised, in what order and at what time.

It follows that in order that the right choices are made, counselling co-ordinators and case managers need to understand what the respective processes have to offer. In other words, they need to understand the differences between the two, and what factors indicate the suitability or non-suitability of the two processes.

As we know, counselling co-ordinators and case managers do not act in isolation. They are directed or advised by judges, lawyers, counsellors, mediators and other professionals. Therefore, the counselling/mediation differences need to be understood by all professionals in the Family Court system.

My concern is that, unless there is such widespread understanding, then:

cases may not be sent to counselling or mediation when they should be;
cases might be sent to counselling or mediation when they should not be.

I have another concern, and that is that those who declare themselves to be either counsellors or mediators, might not properly recognise the distinction between the two processes, and endeavour to engage in some sort of hybrid mix. In my submission, that would be to the detriment of both counselling and mediation, or more to the point, to the detriment of the clients of the Family Court.

The Family Court needs good, effective counselling. And it needs good, effective mediation.

This will not be achieved if counsellors think that they can mediate, and mediators think that they can provide counselling.

Counsellors should not hold themselves out as mediators, and mediators should not hold themselves out as counsellors.

Whilst there may be some individuals who may be trained in both counselling and mediation, they should maintain the purity of the two processes. They should not endeavour to merge the two.

To say of the two processes that both may result in the settlement of cases is not to say that the processes are the same.

The unique strengths of the two distinct processes should be taken full advantage of. What are those strengths? [K]

The strength of counselling is that it addresses the intimate and personal, exploring the emotional and inner life, and thereby leading to improved decision making, greater psychological wellbeing and an enhanced quality of

The strength of mediation is that it provides a means of resolving seemingly intractable disputes despite the parties' personal outlooks and emotional and psychological makeup being so different.

Thus, counselling is capable of achievements of which mediation is not capable, and mediation is capable of achievements of which counselling is not capable.

Counselling and mediation have different world views, if you like. [L]

Counselling starts with the personal and may move on to the prosaic world at large. Mediation starts out in that prosaic world and may delve into personal.

I mentioned earlier my concern that cases are appropriately referred, or as the case may be not referred, to either counselling or mediation.

It seems to me that the number of cases which are not suited to mediation is likely to be more than the number of cases not suited to counselling. Put differently, in the Family Court context, there are relatively few cases that don't lend themselves to counselling, but somewhat more that don't lend themselves to mediation.

Time does not permit a full discussion about the suitability indicators for counselling and mediation, and so I will limit myself to the following.

In general terms, counselling should precede mediation.

Mediation may not be suitable in the following cases: [M]

where there is such a high level of emotion on the part of one or both parties that meaningful negotiation is precluded;
where a party has serious mental health problems;
where one or both parties are not able or prepared to negotiate in good faith because either they have chronically closed minds or lack basic honesty and sincerity [This disqualifying indicator has a high threshold, in other words, only apples in more extreme cases.]
where neither party is willing or capable of addressing care and protection issues.
Where the physical or emotional safety of a party may be at risk.

May I be permitted to raise one other concern that I have, and that is when the Family Court's Matters bill becomes law and is implemented, the right mediation cases may not be allocated to the right mediators.

Counselling co-ordinators have developed expertise in the allocation of counselling cases to the suitable counsellors.

Further, the mediation community is a much smaller one than the counselling community. Counselling has had a strong presence in New Zealand for many years, whereas mediation has been on the New Zealand scene for only a relatively short time, and its presence is still not particularly strong. Further, many persons in New Zealand have experienced counselling of one sort or another, but relatively few have experienced mediation.

There is therefore, across the board, far less understanding of mediation than counselling. This means that decision making about mediation may be less well informed than decision making about counselling.

Compare the following two cases.[N]

Case A involves sensible, competent and devoted parents who have just recently separated, but who are having genuine difficulty, despite the best of intentions, in agreeing on arrangements for the care of their children.

Case B involves parties who are both unreasonable, devious and difficult and who have been aggressively fighting for a couple of years over their substantial and complex relationship property.

I venture to suggest that these cases will demand quite different mediation skills and levels of experience on the part of the mediators. But will the system recognise that, in the same way that it will recognise that different counselling skills may be called for in these two scenarios.

The system is likely to provide a suitable mediator for Case A, but is it likely to provide a suitable mediator for Case B?

It is important that mediators of a wide range of training and experience be attracted to Family Court mediation and that there are mediators available who can handle the Case B type of case. And it is important that decision makers understand the special mediation requirements of individual cases so as to ensure that suitable mediators are allocated to cases, especially the more challenging ones.

My concluding comment is this. [O] The family law needs of New Zealanders, including children, can only in part be satisfied by adversarial processes in an overloaded Court. Effective counselling and mediation are essential in ensuring those needs are met. This requires all professionals involved in the Family Court system to possess a nuanced understanding of both counselling and mediation. We all need to understand the respective nature and strengths of counselling and mediation.

In other words, we need to celebrate their differences.

Category: Mediation