Disclosure & Engagement

This isn’t a reprise of why financial disclosure is essential in a financial mediation but about how a client’s approach to dealing with disclosure is a test of how engaged that client is with the mediation process.

Once upon a time I received an outraged response from a solicitor because I had ended the mediation. I ended that mediation after a prolonged attempt to engage with one of my clients. I had cancelled one session as I didn’t have the disclosure which should have been with me 3 days before. Now that’s a pain for me as it means a hole in my diary which I can’t fill with other mediation clients at short notice. It is however better for the clients than them turning up for a session where they can’t crack on with things. When I do that, I re-arrange only when I have both sets of disclosure. I set a deadline but I ask the clients to let me know if they feel that isn’t realistic & to suggest another. As a deadline approaches but no paper mountain lands on  my desk, I send a reminder. Once the deadline is on us I send another. I point out at least once, usually several times, that, if I don’t get the stuff, the mediation may well end. I explain why. Finally if I am still without the disclosure I do indeed end the mediation.

Why? Well self-evidently, we can’t mediate on what to do with the finances without establishing what is there in the first place so it means that the relevant session will never happen. Beyond that, mediators are required to consider throughout whether a case remains suitable for mediation. If a client just won’t engage with the fundamental task of disclosure, that’s a pretty big indication to my mind that he or she isn’t really engaged with the mediation process itself.

There is no judgement in that. People can just struggle with the task where I do help them organise themselves as far as I can. Some people just aren’t emotionally ready to deal with it all which only starts to become apparent when they are faced with the reality of taking steps towards progress. Some people are, whether consciously or unconsciously, delaying.

Whatever the reason I have to ask myself if the paper continues to be absent whether mediation can continue. Mediation is my process as the mediator but the advance of that process requires full engagement from clients. Whether they get to an outcome or not is after all down to them. The phrase, “Can’t make bricks without straw” comes to mind.

So, if I do end a mediation in such circumstances, it is only because I have re- assessed based not only on my experience as a mediator but also on what must be about 35 years of dealing with divorce and separation. I have decided that the failure to engage with me substantively at all about the task in hand is a symptom of an underlying lack of engagement in a process which has to have the commitment of both participants. I really, really don’t want clients to end up in court. The reality is that they have to want that as well and be ready to do what is needed to make their mediation work.

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