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Bearing Witness in Mediation

by Laurie Israel

August 2020

Laurie  Israel

Recently I’ve been pondering a certain aspect of my experience with mediating divorces. It’s about something that often comes up in my encounters with my mediation clients.  

The feature of all mediations that I will talk about in this post is something I call “bearing witness.”  When clients bear witness in mediation, and when you, as the mediator bear witness for the clients, it can be quite powerful in resolving a divorce. But it needs to be handled properly, or it can be dangerous and get out of control.  If that happens, it can lead to destabilizing and destructive results impairing the ability of the mediation process to address and resolve conflict.  

Bearing witness can occur either during meetings, or as part of the clients’ email exchanges (which you, as the mediator, are always copied on, once mediation starts).

Let’s look at a typical mediation session and see the applications and benefits of bearing witness. 

What exactly is bearing witness in mediation?  

Bearing witness is a way to process an experience, to share it, and to obtain empathy or support.  It makes sure that the person’s experience, usually a painful one, is heard. As Maya Angelou put it, “There is no greater agony than bearing an untold story inside of you.” That’s why it’s called bearing witness. It gives the speaker a path to have their distress of past events acknowledged.  

Elie Wiesel had a slightly different take on bearing witness, and used it a different sense.  His words, “…For the dead and the living, we must bear witness…” are inscribed in stone at the entrance of the United States Holocaust Memorial Museum. Wiesel’s meaning is that the victims of the Holocaust cannot bear witness themselves of their suffering; they are not here. So that it’s our job as survivors to bear witness for them.  

In the context of mediation, the mediation client who is speaking is carrying or bearing the weight of the past and carrying the perceived (and maybe real) injustices of the marriage. The client is asking us (the other spouse and the mediator) to witness and to “bear” their pain. 

Bearing witness in a face-to-face meeting or video conference. 

These days, your mediation sessions are probably done using video conferencing -- Zoom, Skype or Facetime.  But nonetheless, it’s still just like an ordinary pre-Covid-19 face-to-face meeting, except pixelated. 

Let's begin with one of my clients talking – really giving testimony. The speaker is the witness, but also having us witness what they say.  That’s how the word “witness” comes into “bearing witness.”  The speaker is talking about the behavior of the other spouse.  Usually it’s about behavior that happened during their marriage.  We (the other spouse and I) remain quiet as we listen to the narrative of the speaker. 

But here’s the inherent problem with this.  Mediation looks to the present and the future and not to the past.  In divorce mediation, the historical, if I may put it, systemic problems in the marriage, are why the marriage is ending. It’s why we’re here today in this 3-way meeting, and it’s why the clients are getting a divorce. 

In most cases, the marriage can’t be fixed.  We’re here to solve the problem of their divorce and work on a viable solution.  What terms will be fair and allow the couple to function financially and with understanding, especially if they will continue to be raising children together?  That’s the work of mediation.  It’s forward-looking. 

For that reason, it’s usually problematic to rehash the past in mediation. I try to limit this type of “bearing witness” narrative in face-to-face mediation sessions when it comes up because it interferes with the ability to come to terms with the couple’s new relationship as ex-spouses, and interferes with getting to the terms of the divorce. 

I might tactfully cut the narrative fairly short, and say after a suitable (and short) time, something like, “I see you’ve experience a lot of hurt… “ or “There is a lot of hurt that you both have experienced.”  (That’s a little more dangerous.)   Then I might say, “But we’re here to talk about the future. Let’s look to the future and try to create some workable terms for your divorce.” 

The fact that a mediation client might feel that they are in a safe place in mediation to tell their story is very important to the effectiveness (even sanctity, if you will) of the mediation process.  It’s highly significant that this “telling” or “bearing witness” takes place in front of the neutral mediator, with the other side listening. 

Bearing Witness in an email stream.

Bearing witness also actually works quite when the clients initiate and are engaged in a stream of emails.   I am copied on them because as a neutral mediator, I am the referee of their disputes. I require all communications to be 3-way.  Also, they are better behaved when arguing in front of the mediator.  I am the Wizard of Oz behind the green curtain. It’s powerful to have a neutral “listen” to them.

Usually they are discussing (really, arguing about) certain specific terms that are being generated or considered for their divorce agreement.  I am copied on the emails and they know I am reading their emails. Because I am a neutral witness, and they are expressing themselves not in real time but in emails, their argument tends not to become too “hot.” I function as a limbic brain anger regulator.  It helps the clients discuss the issue more rationally. 

This method can eliminate the painful face-to-face arguments they would certainly have if discussing the terms with each other without me, the neutral third-party, “in the room.” They are each bearing witness to me as they write. I imagine that this allows them to feel very comfortable having their discussions mediated in this way.  

I never respond in real time or weigh into these emails.  I just “listen.”  When we have our next mediation session, I may include the issues they discussed in their email stream and work them into our agenda.  So this type of “bearing witness” actually works quite well. 

Doing nothing can be good sometimes.

Listening is all that is required of the mediator and of the other client when one of them is bearing witness.  You don’t have to have an opinion or be a judge. What is expressed by one client is not to be parsed, investigated, or found to be true or false (or both). Try not to think analytically.  Think about compassion when you start to judge.  It is not your place to evaluate and try to come up with solutions, as we are want to do.  Bearing witness is simply an acceptance of that person’s story (as a story) in a safe setting.

It is very therapeutic to the speaker just to be listened to.  Listen quietly.  Don’t respond. Don’t let the other spouse respond by countering what was said.  Arguing about the past almost always has no relevance to the mediation. The fact that the information is shared in front of the neutral mediator, and is accepted by the mediator in a neutral way, tends to have a calming effect on the clients. This is extremely helpful in setting the stage for a successful mediation. 

The silence and acceptance and non-judgmental stance of the mediator is one of our strongest  suits.  We are (theoretically) neutral and unbiased. We constantly learn as mediators – and continue to re-learn -- not to take sides, not to judge.  When we develop internal opinions about the clients -- which one is justified, and which one is in the wrong – time and time again we are proven wrong. Bearing witness without judgment is a gift you can give your mediation clients as they work through their parting from each other. 

When you as mediator are bearing witness, you are carrying someone else’s burden of their version of the truth. By carrying it for them, you are lightening their load. As a result, listening should be done with your full attention. We are receiving and witnessing their pain.  Absorbing a client’s version of past history without judgment is a practice that lets us connect with and serve our clients who are suffering. 

As you listen, keep the word “empathy” in mind. If you begin to judge, think about the word “compassion.”  That’s all that is required.  Be open, quiet, listening, and aware.  Being a compassionate observer is a comfort to our clients. We are not there to fix their suffering.  But we can share and bear witness to their experiencing it openly without taking sides. 

Conclusion.

Being chosen to be a mediator by your mediation clients as they end their marriage is a high honor and a great responsibility.  Giving our clients the gift of bearing witness is a profound act which can help them validate their feelings.  By listening to their version of the story without judgment, you are essentially acknowledging your mediation client’s truth, without invalidating the views of the other partner.  The empathy they experience helps them move on.  Moving on means working on and solving the practicalities of their divorce, which is the reason your clients chose to work with you in mediation in the first place!

Laurie Israel is a lawyer/mediator who works in the areas of collaborative divorce, divorce mediation, divorce negotiation, prenuptial agreements and postnuptial agreements. A significant part of her mediation practice is mediating prenuptial agreements and she has written extensively on this subject. Laurie has published articles on prenups in The New York Times and in the Wall Street Journal, MarketWatch, as well as in The Huffington Post. Laurie is the author of “The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls,” now available through online booksellers. Laurie also helps people who wish to stay married through providing marital mediation and is a frequent presenter on this topic, giving trainings to mediators around the country. Laurie is a former board member of the Massachusetts Council on Family Mediation and of the Massachusetts Collaborative Law Council. She is a founder and a managing partner of Israel Van Kooy Law, LLC in Brookline, Massachusetts. Laurie writes regularly on marriage, divorce, mediation and other topics.

Website: www.ivkdlaw.com

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