Speaking Truth To Clients

Some of the things that make mediation achieve an outcome or not happen way outside the mediation room- or more accurately screen now I am an online mediator. Obviously that includes the emotions swirling around, the influence of family, friends and new partners and practical realities. It’s the job of the mediator to attempt to deal with all such influences. However one of the main things which derails a mediation is something over which a mediator has no control- legal advice.

Now I’m passionate about spelling out to my mediation clients that they should always take legal advice on finances. I usually send them off to do that once all the disclosure is available- electronically in these days of online. However I do that in the knowledge that my mediation clients doing that can sometimes have disastrous results when that advice is not, as it should be, across the range from realistic worst to best outcomes, but positional. Mediation is a chance for your clients to resolve matters. It’s not about presenting a case in court. Negotiation in mediation has to reflect the fact that there are almost always pros and cons in each client’s case. Clients need to know the facts of life. They need to know not just the aspirational heights but also what a good bottom line might be.

As a mediator I give a lot of neutral legal information about the orders courts can make on divorce and the section 25 factors. That information has to be neutral and balanced. And that’s where the issue arises. There are lawyers whose advice is far from balanced. I can tell. I spent almost 30 years at the coal face as a family lawyer. I keep up to date with the law. I know, as do all the divorce lawyers out there that a court is obliged to look at both sides and come to a balanced decision. There is a world of difference between the presentation of a case on behalf of one’s client and the obligation to give nuanced and balanced advice to that client when closeted with him or her in one’s office or onscreen.

Clients trust their lawyers and so they should. They shouldn’t however if that lawyer isn’t prepared to spell out the facts of life even when a client wants to turn a deaf ear. It’s the client’s life. It’s his or her money which is depleted the higher a legal bill grows. It’s only the client who should get to decide on what deal he or she may make, a decision which can only be made when in full possession of all the facts, palatable or not. Clients need disinterested advice from their own lawyers. Granted they don’t always listen.

Mediation clients in fact get to know what advice has been given to their former partner. It’s glaringly obvious when that advice is miles apart that it can’t both be correct.

Many lawyers do give balanced advice. There are clients who come back to the next mediation session having received sound advice. The difference that makes to negotiations in mediation is immense. It is often the difference between a mediated outcome and a protracted and costly battle.

It is inherently wrong if a client only confronts reality when a barrister sits them down before a FDR.

So, if you have a client in mediation, please do give them advice which covers the realistic range. I know there are some cases where there can be genuine disparities and uncertainties as to what view a judge would take but such cases are few and far between. Even there, surely clients are best served by an early private FDR than by a joustĀ  in the court tilting yard.


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