From “patient” lawyers to mediation

Ema Berardo: We lawyers who practised family law began to ask ourselves what answers we were giving people. However well things were settled, we were handing them the conclusion of a life project: divorce; we were offering them an adversarial trial in which we forced a mother to hand over a child to a visiting schedule. The consequence, however good the judgment handed down by a good magistrate, was subsequent non-compliance, and, in the first days of February, the telephones would ring over unpaid maintenance or the delay in returning the children after the holidays. So, when we met at the lawyers’ association, we would say to one another: “What are we doing?” Honestly, we were not giving people good answers. A group of women lawyers then began to think that there might be a different approach, and that it might not be found in the law alone. At that point, in 1986, Florence Kaslow came to Argentina and told us about the existence of mediation for certain matters. That is how the movement began to integrate this discipline, and other neighbouring disciplines, into our work with families.

It was a fairly difficult path. Our colleagues referred divorces to us because they saw us as “patient” lawyers, lawyers who, fundamentally, accompanied and listened, who understood the life process, that of the family or that of the moment in which it found itself immersed. The principle was not to go to trial if the people were not really ready in terms of the life cycle; perhaps they needed to consult in a therapeutic space, in other words to accompany the process the people were going through. Eventually, mediation formally got under way, and many lawyers went to the United States to train first in mediation, and then some of us went on to continue learning at the MRI (the Mental Research Institute in Palo Alto). Adriana Wagmaister and I came into contact with communication theory and with everything that systemic theory and practice meant. From then on, we began to work in an interdisciplinary way, concretely in the approach to the family, until some of us decided to devote ourselves exclusively to mediation. For my part, I gave up practising at the bar ten years ago now, and it is almost three years since I began to include the issue of violence.

Since this is a political ministry, the director we had at the time proposed mediation only for public conflict. So I asked him what he had planned for the family of the third millennium. He was surprised, because he was thinking essentially about the political, public question, and I said to him:

“And this family of the third millennium, does it concern you? The blended family, so common nowadays, does it concern you? The problem of grandparents? The problem of violence? Everything that economic exclusion has brought, and the violence settled within the family…?” From then on, he entrusted me with running a research project aimed at determining in which situations mediation applies as a tool for conflict resolution.

Violence: the differences with the gender perspective and the three bodies of knowledge

Ema Berardo: Family violence is a fairly contested subject from the gender perspective, which asks whether mediation can really be a space for a family affected by violence. Some gender theorists maintain that mediation would reproduce the same confidential and private space in which the scene or act of violence occurs, and that it would therefore not be advisable to resort to it. Of course, when people from the gender field make this kind of comment, they take the mediator for an inexperienced operator, for an amiable conciliator. This view is overturned by the North American doctrine of mediation: today in the United States, as was confirmed at the world forum with the people from Washington D.C., they have, from the court, in what they call the multidoor, the capacity to assess the intake of cases linked to the issue of violence. Based on our perception of the case histories in our country, we decided to take up this subject. There was no record of this family aspect, nobody asked at intake whether there had been acts of violence; so the violent event would burst into the work of the mediation hearings, and the operator who came from the legal field would end up in a situation of some danger in the middle of the hearing. I then suggested to Irene that we create a safety mechanism, by checking at intake whether this family had genuinely had experiences of violence. We found that, in many cases, they had already been through the courts, had undergone psychological treatment, had been to hospital, and that the family nevertheless kept repeating the same situations.

Irene Cymerman: There is another point that it would be important to include: if, at the opening of a mediation, the mediator is faced with situations of violence, that mediation should be suspended to avoid the repetition of those scenes. That is why the way of working was rethought.

Ema Berardo: Moreover, in many cases, colleagues would close the situation by labelling it “not mediable.” Personally, I decided to separate the parties, to work in individual hearings and not to interrupt the process, because I considered that it was a democratising space, which proposed a new language. Concluding that a case was “not mediable” meant encouraging that family to repeat that circuit.

Indeed; it was also a disqualification of those people as people.

Ema Berardo: Exactly. That is why we decided to continue the mediation, working with the hegemony of the three bodies of knowledge simultaneously, that is, in parallel. That is what we are doing right now: we work the three bodies of knowledge in parallel, the legal, health and mediation, without any of the three prevailing over the others, because we think that if we give all the hegemony to health, we fail to take responsibility for questions relating to the family, to maintenance; and if we add the legal to the question of how they are to start functioning again, in what is called the functionality of the family, the family would also be left as if neutralised. By walking on all three legs, we give good answers.

Irene Cymerman: We also began to perceive the need to connect with the institutions working on this issue. If we do not, we remain completely isolated. So we began to work in a coordinated way. At the outset, Ema called together all the institutions working on the issue of violence, and about seven days of exchange were organised with the institutions dealing with this question. The primary aim was to build a network.

Ema Berardo: And also to observe models of intervention, because the presentation we gave to colleagues was not only intended to bring them closer to us, but to have them show us how they worked. At the first meeting, we showed how we proceeded; we were then able to observe how the others worked on the legal side, how they did it in the health field, which allowed us to know that referrals would go to a place where we all spoke the same language.

Irene Cymerman: The point was to personalise the referral, by saying to the people who consult us: “Go to such-and-such a hospital and see such-and-such a person in particular.”

What type of institution do you refer to? Public, private?

Irene Cymerman: Fundamentally public; in some cases to private institutions, but they had to have NGO status (non-governmental organisation). We cannot refer to a place where people would have to pay. And if it had to be done, as in the case of Casa Verde, it is a differentiated fee, because it is a foundation that deals with certain family relational issues. But only for matters for which the State has not yet set up this type of programme, for example places for re-establishing the bond between parents and children, or between grandparents and grandchildren. As the State has not yet provided this space, it was decided to refer to this foundation, but that was the only case in which we used this resource.

Ema Berardo: We also refer to a programme for violent men run by the City government, directed by Raúl Matiozzi, with whom we have very good experiences. In this exchange we have set up, we already have several emblematic cases. We have referred four or five cases, with very good results.

Lately, all my practical work has been on situations of violence. When people come to intake, my coordinator, Irene, classifies the cases by theme, taking violence as one of the main items. It is a more in-depth interview, to gather more information, and it is on this subject that I insist the most.

Safety, absence and other challenges of mediation

Ema Berardo: Within this framework another situation arises: the receipt of the summons to mediation. What happens for that other party when they receive that summons? It is a subject that concerns us enormously. Attendance also concerns us: if violence can be generated between the moment the person requests mediation and the scheduled hearing, what situation can be created during that lapse of time, and what can happen here once the hearing is under way.

By way of prevention, we always look for different times, when there are many people around and we have the peace of mind of knowing that the security service is downstairs; we do not work in small rooms, but in large halls, where the operator can stand near the door, without too close or too intimate a contact with us. In fact, we have not had any problems, and no situation of violence has arisen in the waiting room, or anything of the kind.

When people ask us to, we receive the parties in conflict separately. We create a totally containing and calm space, to prevent what they recount from being acted out during the mediation. We have taken care of all these details and, fortunately, by being together, Irene and I, we were able to confirm that in Washington D.C. they do exactly the same as we do, which lets us know that we are on the right track. They have more resources. We have no money to produce statistics on what we do, and we have experimented in our daily work.

Irene Cymerman: There would be several points left for us to consider and explore, but there is one we have reflected on: what happens with people who have requested mediation and who then do not turn up at the hearing? Our hypothesis is that there has been a threat or a violent situation which means that the party who requested the mediation does not come either. So it is a subject we are going to reflect on to see how to rework it, because there is something there that is not right.

Co-mediation and in-room observation

Do you ever work with family therapists? Or is it generally mediation work, with referral?

Ema Berardo: Sometimes we do co-mediation and in-room observation. That is, with a silent observer in the room, who takes notes and keeps a written record of what happens. Often, Irene sits at one end of the room and records.

Another subject linked to these procedures is that we need the lawyers who intervene in these situations to be properly trained, because we need neither an overly litigious lawyer nor an overly “syrupy” one. We need a lawyer who prepares their party but who genuinely accompanies them, and who does not generate violence in the room, because it has happened to us that professionals brought in by the people themselves, with the best will in the world, provoke a terrible argument with the other party and act out situations of great anger, due exclusively to a poor legal intervention. Not from the point of view of knowledge of the law, but in the dynamics of the interpersonal situation. There are words that lift people up and others that bring them down, and lawyers have this characteristic because they rely, moreover, on a cause-and-effect logic, which is not the mediator’s logic, which is circular.

Irene Cymerman: And that creates a question of power as well.

A great deal of work is done along narrative lines. Is there a school you follow more closely? Because there are very well-defined schools in mediation, as you well know.

The Argentine model of mediation

Ema Berardo: I think it is an Argentine model. We have taken from the narrative approach, from the systemic approach in general, from communication theory, from the strategic approach, from Minuchin; in other words, we have integrated everything that has served us so that our colleagues can have a practical tool allowing them to take appropriate decisions in the face of the dilemmas that arise in this type of consultation. I think we already have an Argentine model. Of course, we keep studying and training continuously.

We are totally convinced that it is the best answer for the family; I think the trial has ceased to be the first option, and that starting that way is a mistake. I say this because I am married to a lawyer who has nothing to do with mediation, and sometimes, when I am angry, I say to him: “Enough of the lawyer’s causality!” (laughter) Because it is a logic of winners and losers, and in the family it is not like that: it is a constant becoming, a constant construction.

It is another conception, another way of seeing things…

Ema Berardo: It is another paradigm. And I think this third millennium confronts us fundamentally with the concept of diversity, which has to do with how we negotiate, how we live alongside different points of view. That is the great challenge, especially because the family, in Argentina, has been mistreated and excluded. Without work and without social representation, children start primary school and see little of their dad and mum, because both are working.

The family I have just received, for example: he is a bank employee, and she, in order to pay the bills, cleans in the building; in my day (I am 51), that did not happen, never would the wife of a bank employee go to work doing housework. You listen to them today and you wonder: what degree of violence does this generate? This family has developed in this new and complex social context, which demands an effort from all professionals to understand today’s family and thus be able to help it more effectively.

Many of us have other resources; we can find spaces elsewhere, we can count on the affection of our friends. Many families are isolated and do not know how to connect socially: “Well, the only thing I know how to do is take him to Burger King, I can’t do anything else…” But in Argentina, despite the crisis, there are still free cultural spaces. There are more interesting options than going to Burger King or playing little games on the computer. That is why we ask them: “And aren’t there other things you could do?” There is not even any space for conversation…

In other words, you also raise awareness of these precious resources, of new and better possibilities.

Irene Cymerman: And I think that cuts short an important argument of some separated parents: “I am not going to see him because I have no money.”

Ema Berardo: Exactly. We present them with other options, telling them what other parents report to us in similar situations.

In other words, always as something we leave there, on the table, as a possible option, not as an obligation, but so that they hear other things that other families do. It works as a psychoeducational intervention.

We observe that these families lack interpersonal resources. Moreover, because of the whole situation they are going through, they are blocked, very slowed down, with little capacity to resolve the difficulties they have been dragging along since the origin of the conflict. I think nobody lives at peace with unresolved questions that have perhaps been going on for three, four years, sometimes ten years; you observe the situation and you wonder: “They are still fighting over maintenance?”

Referral

And how do these families get here?

Ema Berardo: At the beginning, it was a pilot scheme; referrals came from the courts. It started with ten courts and ten mediators. Then, when the compulsory mediation law was passed, in 1996, another ten joined us, because it was a political plan: the State’s policy was really aimed at relieving the congestion in the courts, and that is why the project was carried out.

Mediations are allocated by lot; I have to, by contract with the civil chamber, complete a certain number of hours, and after that I am free to practise the profession. The chamber draws lots and, outside that framework, the rest is private mediation. Here, lawyers come to request a mediation. For my part, I work on family matters at the City government, of course in the field of mediation. I also work in education, because in 1993 I trained in the United States as a mediator and in 1994 I began teaching school mediation at a teacher training centre, where I still am.

Is that a field where conflict resolution is also developing?

Ema Berardo: Yes, since 1994, when Daniel Filmus took office in the City government, in the field of education, he asked me to work on public conflicts in which one of the parties is the school. I approached the subject with a multi-party view of conflict; in other words, I now have a relationship, as they say in the United States, an excellent joining with the student centres, with the parents’ associations, the NGOs and with the neighbourhood assemblies, facilitating communication with the school. The school is called upon as a space of trust within a society in a crisis of values, since it has nonetheless retained a position of prestige. People ask certain things of the school: they ask it, for example, for rooms so that the neighbourhood assemblies can function, for more grants, for street closures; there are occupations of schools. That is what I have devoted myself to over the past three years in the afternoons; in the mornings I do family mediation here, and in the evenings I receive private family consultations! (laughter)

Honestly, for private work, I have no time, and yet people keep calling us; which shows that people have genuinely realised that mediation is a good resource: they no longer want the traditional trial, it no longer serves them.

Irene Cymerman: That is more or less how they get here. I think it also depends a lot on the lawyers: if you have a very belligerent lawyer, they drag you along, they lead you towards the trial, towards the legal battle.

Ema Berardo: That is true, and many family mediations fail for that reason. In response to this, we are organising an inter-institutional space with the City government, to create an exchange with a sector of the bar that provides free legal aid and wishes to take part in this project on mediation and violence. It is a space of the City government, in the field of health and in that of mediation, so as to be able to carry out the work with these families, because we are convinced that our concern is the children: that the child and the adolescent replace the vision of the violent scene with that of conflict resolution. We are convinced that the field of mediation is an appropriate space to contribute to this. Just as the sociologist Anthony Giddens speaks of democratisation in the public sphere, I believe this millennium is that of the democratisation of the family, by helping it to integrate new languages, particularly in cases that suffer from situations of violence. This new language is that of the peaceful resolution of conflicts. What we lack is the playful part, that is, we have yet to think about recreational spaces for these families, who are very shut in.

Today, it has been some time since we have had authorisation to organise certain meetings, because this space has always been tinged with political questions; we are always at the mercy of the leaders, whereas we are really technicians. It is important that we do not remain blocked by these political disputes. It is a technical space, beyond each person’s political ideology, to give the country better tools to face these conflicts.

You already function as trainers, don’t you?

Ema Berardo: That is on hold at the moment. We were the trainers of most of the people in the institutions, who then became trainers in their turn. In the interior of the country, we have done a great deal of training work. Thanks to multilateral training agreements, we have also gone abroad. We have travelled to Peru, El Salvador, Chile, Paraguay, Venezuela, Guatemala, Honduras, and at the moment a small piece of work is under way in Panama and Paraguay.

So much for the public field, in which you accomplish an immense task; in the private field, are there also mediation institutions?

Ema Berardo: Absolutely: there are two hundred and forty mediation training institutions, accredited by the Ministry of Justice, with a whole series of requirements they had to meet in order to be accredited, and it is they who make up the community of mediators.

We also form the committee that assesses candidates for registration on the register; so we organise two examinations a year, one in May and the other in October, an examination that consists of resolving a case, first in writing, and then the candidates have to give the justification orally. We have many applicants. One hundred professionals started, sixty remained and only thirty-five were admitted. As you can see, the examination is quite demanding, we are not much loved outside (laughter)… We consider that once the professional is accredited, the task is a solitary one within the practices, and the lawyer suffers from that; it is then very tempting to meddle in other disciplines, which is iatrogenic; that is why one must be very clear about who one is really accrediting. We seek to prevent the mediator from meddling in the question of emotions, opening things they do not know how to close again, and people coming out in a worse state than they went in; that their field be very limited, specific, very strict, and that they be able to realise that even if people cry or do this or that, it is not a mediation matter: for that, there is the psychologist’s office. We are very clear about this, fundamentally respecting the activity of our friends the psychologists, because we have learned a lot from them, they have taught us and teach us every day, and we have no reason to encroach on a matter that belongs to another discipline; we have no training for that. We have training in communication, in negotiation, a little in conflict, but always interrelational conflict, not intrapsychic; and even though it is very beautiful and very seductive to start approaching these subjects, it is not our field, and on this we delimit our domain very clearly, so that it is very clear. We distinguish very well what a therapeutic intervention is and what a mediation intervention is; we take great care over these details, we are very demanding in this respect.

It is good that you make this clear, from an authoritative position, because psychologists hope to hear this, and lawyers need to hear it.

Ema Berardo: Exactly. Nor do I think that a lawyer who comes to mediation and says “I am a mediator” is healthy for the party they accompany, because it neutralises me; there too I am demanding, because they come to accompany the law, not to do mediation.

Otherwise, it would be a partisan mediator, which would be a bit contradictory (laughter).

Ema Berardo: Besides, it is of no use to me, because it leads to conceiving things that a lawyer should not conceive. That is why, in this new inter-institutional space, we are going to set up a training component, strictly in the field of violence, so that the lawyer knows what it is about, how violence erupts and what must be taken into account given the dangerousness of the subject.

As regards the health field, we find it interesting for professionals to come and tell us what they do; for example, when parents call me and say: “I wanted to tell you that Raúl has discharged me, and I knew you would be pleased.” I find it wonderful that he can be discharged, because I have managed to contribute to a social end: it means that this little boy’s father will no longer generate violence, and that this child will not return what he received passively when he saw that his dad and mum had a way of resolving their differences with blows.

For the future, you are setting up a fairly important safety project. Preventive work.

Ema Berardo: That is what it is about. The more what is being done is disseminated in society, the better, because it is a help to everyone; today, one cannot conceive of a society without networks.

Irene Cymerman: We would need some kind of guide, to know in each case whom to turn to. The question of referrals is a whole subject: the hospitals are saturated.

Absolutely; I think it is precisely through dissemination that other people will be able to get to know you and approach you, or the other way round. Perspectivas Sistémicas can help facilitate this contact.