by 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.

What I’m referring to 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 a powerful force in helping to resolve a divorce. But it needs to be handled properly, or it can be dangerous and even get out of control. If that happens, it can lead to destabilizing and destructive results impairing the ability of the mediator and the mediation process to address and resolve conflict.

Bearing witness can occur either during meetings, or as part of the clients’ email exchanges among themselves, which I am often copied on.

Let’s look at a typical mediation session and see the application 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 elicit 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 having their distress over past events acknowledged. That’s why mediation clients tend to verbalize their anxiety or pain in mediation sessions.

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

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, at its core, it’s still like an ordinary pre-Covid-19 face-to-face meeting.

Let’s begin with one of my clients – giving testimony as to his or her pain. We (the mediator and the other spouse) are the witnesses. That’s how the word “witness” comes into “bearing witness.” But we are also acknowledging the pain of the spouse who is speaking vicariously. (Well, maybe the other spouse is not…)
The speaker is sharing their perceptions about the behavior of the other spouse and their effects on the speaker. Usually it’s about behavior that happened during their marriage. It’s important that we (the other spouse and I) remain quiet as we listen to the narrative of the speaker.

This is true, even though the non-speaking spouse may disagree with the veracity of what has been said. It’s very important to counsel the spouses not to contest the speech of the bearing witness spouse. Just to receive it. At a different point in the mediation process, that second spouse may be free to bear witness under the same terms.

There is an inherent problem with the concept of bearing witness in mediation. 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 three-way meeting, and it’s why the clients are getting a divorce. It can’t be fixed by rehashing the past.

We’re here to solve the problem of their (future) divorce and work on a viable solution. What terms will be fair and allow the couple to function financially and with understanding each other’s positions? What terms can be positive and helpful if they will be continuing to raise 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. That’s why I try to limit (and even prevent) this type of “bearing witness” narrative in face-to-face mediation sessions when it comes up. It hinders the parties’ ability to come to concrete terms that will apply to the couple’s new relationship as ex-spouses.

If the bearing witness by a spouse starts, I might tactfully cut the narrative fairly short, and say after a suitable (but 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. However, it’s probably best to curtail it.

Bearing Witness in an email stream.

Mediation clients may also bear witness in a stream of emails between each other (which I am purposely copied on). I am copied on these because the “speaker” wants me to bear witness to their pain. It’s helpful that they have these email discussions in front of a neutral mediator, who is potentially a referee of their disputes. They are better behaved with each other when arguing in front of the mediator, whether by email or in person. The mediator is like the Wizard of Oz behind the green curtain. It’s a powerful function.

Usually they are discussing (really, arguing about) certain specific terms that are being generated or considered for their divorce agreement. Even though I may be copied on some of these emails, my silent “presence” helps keep their argument somewhat civil and not become too “hot.” I function as a limbic brain anger regulator. It helps the clients discuss the issues 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 to or weigh in on these emails. I just “listen.” When we have our next mediation session, I may include some of the issues they raised in their email stream and work them into our agenda. As a result, 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. Try not to evaluate or think about solutions. Bearing witness is simply an acceptance of that person’s story ( their version) in a safe setting.

It is very therapeutic to the speaker just to be listened to and feeling heard. 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 , 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 the financial terms of 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. We are in effect validating their feelings.

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-minded, quiet, and aware while listening. 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 clients as they end their marriage is a high honor and imparts great responsibility. Giving your 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 through and solving the issues of their divorce, which is the reason your clients chose to work with you in mediation in the first place!

Published in mediate.com, August, 2020

© 2020 Laurie Israel.

Laurie Israel
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