Closing the Deal

How often when you are mediating do you encounter an apparently insurmountable problem just at the point when logic dictates that all the t’s are crossed and almost all the i’s dotted? There you are on a roll with what seems an outcome in sight when the whole thing starts to unravel. Even more common is when, towards the end of a chain of proposals with an ever narrowing gap, one person suddenly comes up with a whole different scenario. Now all we negotiators know that it’s very hard to go back to earlier in the chain once a certain point has been reached. I guess it’s why, in solicitor negotiations, there is a reluctance to be the first off the blocks with an offer. You know it can only get worse from that point. You have nailed your aspirational colours to the mast and the rules of compromise mean that you will actually settle for less.

I know that, when I was still lawyering, a client who had been onside throughout would often wobble when the time came to sign on the dotted line. And that’s what we also see in the mediation room. Anybody who isn’t used to working with separating couples probably assumes that they all long for the finish point, for that time when everything is finally resolved. It isn’t of course as simple as that.

Leaving aside that one person may still not want the separation at all, achieving a full financial settlement (whether in mediation or elsewhere) is a scary thing. OK all that bargaining and uncertainty is at an end if you settle. The reality is though that that really is the end, the formal recognition that all that married life, all that you built together is forever gone. More than that, the financial settlement will define your future. It’s your life from now on. What if it’s all wrong? What if you can’t actually manage despite all those careful calculations, all that flip chart work?

So the point of resolution is where you step off the cliff edge into the unknown future. It’s hardly surprising that only the bravest or the most foolhardy don’t have at least a hesitation before they jump. For some people, they just can’t bring themselves to do it at all.

What can a mediator do when that happens? You can’t give them a  push. That’s against all that mediating is about. People genuinely have to reach a settlement which they accept. It’s not about you and the fact that you would like an outcome after all your hard work. Nor is it about the other half of the couple who watches as what they thought was a done deal crumbles into dust. You are impartial.

What you can and should do, if only to try to preserve some relationship between your clients, is to recognise openly that deciding this stuff is hard. A decision means so much more than the purely financial. It means relinquishing what has gone before and embracing a future on your own. You may find that, if you simply voice that, for the client who is just having a moment of pain and panic, that will be all they need.


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