Transformation
This article makes the claim that mediation, a private, voluntary and creative process, can be designed to effectively address and resolve conflict among family members engaged in family enterprise(s) and that mediation can be a transformative process. The idea of transformation is daunting to many people because it implies change and doing things differently. In my twenty plus years of resolving conflicts, I have found that a reflective, creative and adaptable process outside of litigation allows for parties to slow down; manage emotional reactivity; thoughtfully consider the other perspectives; engage in productive conversations; and learn more about each other and enable positive outcomes as to how decisions and agreements can be reached.
Family business advisors can also consider making changes in how they work with family enterprises when the client/family is stuck, struggling with and resisting change, having difficulty making decisions or giving instructions as a result of disagreements and conflict. Specifically, family business advisors may recommend an appropriate mediator to join the professional team and work with that mediator to assist the family.
What is mediation?
Most simply, mediation is a private, voluntary and non-binding process where a third party mediator(s) assists parties to better understand each other to negotiate and reach agreement. It is more than an alternative to litigation as a conflict management and resolution process. Mediation can be a transformative process.
Mediation can also be a process that results in the parties learning more effective communication skills, engaging in challenging conversations, repairing and preserving ongoing relationships and seeing conflict as a positive driver. It can also be a medium for brainstorming, devising new decision-making processes and considering changing circumstances in a neutral and confidential setting with the assistance of a conflict resolution expert. In my experience, these types of outcomes are transformative and as such the process is worthy of consideration by any family wanting to do things differently and by any trusted advisor assisting a family to move forward.
The mediation process can be designed with the trusted family advisors’ input and participation and with the objectives and characteristics of the family in mind.
Mediation as an engagement, not an event or transaction
In my view, conflict resolution via mediation requires a re-think. Mediation of family disagreements is not an event or a transaction. It is an engagement over time: a private and confidential process where the parties have agreed to step outside of a litigation mindset and agree that what is discussed will not be used in litigation. It allows for the creation of a time schedule to establish better communication protocols, make efforts to try and understand each other, re-establish trust and move forward in a more positive way. The process requires the parties to commit time and energy to discuss and think about topics that are uncomfortable and an openness to test positions and family myths, change opinions, and to leave some family stories behind, especially those that are no longer relevant or helpful.
The role of a mediator
A mediator is impartial, not representing any one party. A mediator is trained to: de-escalate conflict; build trust; facilitate more productive conversations; acknowledge and manage emotions; assist parties to define “the problem;” test the veracity and relevancy of positions; reframe positions; and assist the parties to learn to collaborate and move forward with their agreements and decisions. Mediators are not therapists but may find the need to consistently acknowledge emotions expressed in the process.
A mediator can help the parties establish communication rules, define the circumstances within which members need to engage in productive discussions, and create a schedule to discuss issues as prioritised by the group. A mediator can reflect back to the group the family’s patterns and suggest techniques to engage productivity in conflict and to change family patterns, including avoidance of decision making, triangles, emotional cut off, scapegoating and more conflict. In addition, a mediator may review with the family its history and patterns in dealing with significant change and conflict through previous generations.
My mediation process deliberately focuses on the family and the business rather than on the individual. This process may include individual, small and large group meetings. Most importantly, it involves assisting family members to listen more thoughtfully to each other, consider different perspectives, and find better ways to make decisions and reach agreements. It may involve some members seeking third-party assistance from lawyers, coaches or therapists to ensure they are fully engaged in the process. At other times, the family’s trusted advisors may be brought in to clarify or explain the meaning of structures, whether trusts or corporate organization, tax and estate-driven transactions, or the financial and personal circumstances facing the family and its enterprises, and help canvass the options and recommendations for moving forward.
Mediators can work with family business advisors and with family stakeholders, striving for the common goal of assisting the family to understand its disagreements and manage and resolve conflict in a more positive way.
Best practices
Advisors must seriously consider the linear and public process of litigation, the available adjudicative remedies and the irreparable harm that litigation can do to ongoing business or familial relationships before recommending litigation. They should also consider the possible positive outcomes of mediation. For example, agreements and decisions made by the family rather than by a judge; the possibility of repairing and preserving family relationships in private; family members learning to become more effective at managing and engaging in challenging discussions and becoming more adaptable to changing circumstances. And, most importantly, the possibility of the family viewing change and conflict as creating opportunities for growth and more meaningful relationships.
In my conflict resolution work, I engage all of my professional training and experience and approach family conflict with every possible tool available to me. These tools include my knowledge and understanding of legal principles and remedies, business associations and organizations, legal, mediation and coaching skills, experience working with multi-disciplinary teams and collaboration, compassion and intuition, humour and also my personal experiences and knowledge as a lawyer, business person, individual and member of a family. It requires reflection, self-awareness, presence and careful listening to what is said and not said, curiosity, courageous questioning, acknowledging emotion and making a space in the process for the appropriate release, and encouraging playfulness in the process.
I am also rigorous in my reflective practices. I consider how I might have done things differently in the situation or what needs to be changed in the process to respond to new information and circumstances. I constantly work on being as self-aware as possible and taking good care of myself by engaging in my mindfulness, spiritual and other health practices.
The following practices continue to enable me to effectively mediate family business disputes:
- Practice reflectively and mindfully;
- Treat your clients respectfully and with empathy;
- Welcome the input and wisdom of the family’s trusted advisors;
- Commit to ongoing learning;
- Be aware of strengths, limitations and cognitive biases;
- Listen carefully to what is said and not said and be aware of non-verbal communication;
- Model effective communication;
- Reflect back on what I observe, ask questions about same and reframe positions and stories when helpful;
- De-escalate conflict; create space for emotions and breaks from the intensity of the discussions;
- Focus on the systems (family, business etc.) rather than the individuals;
- Dig beneath the surface issues;
- Trust and access intuition;
- Accept that some conflict is enduring and may not be resolved but that there is a benefit to staying engaged;
- Use humour, creativity and compassion to keep people engaged; and
- Only take on work where I believe I can make a positive difference and leave the rest for someone else.
In conclusion, mediation undertaken by a reflective mediator is a transformative process that is well suited to assist families manage conflict — especially conflict that has existed for a long time, have more productive communications, devise decision making processes and reach agreements, because the process is adaptable, private, safe and non-litigious.
About the contributor
Robin Dodokin, CFBA, is a litigation lawyer and mediator in Toronto. She is an ombudsperson, family business advisor and coach who practices in the areas of conflict resolution, commercial litigation and insolvency. Robin can be reached at rdodokin@garfinkle.com.
