Magic Wands

If you had a magic wand what would you change in the world? It’s a question which, in its improbable scope, recognizes that we are in the realm of fantasy. The genie with three wishes is a fairy book character. It is after all important to dream. However most children realize that there is a huge distinction between dreaming and wishing and everyday reality. But then, but then, enter the world of divorce and separation and magic wands reappear in people’s thinking.

What on earth am I going on about? Well it’s the client who, without being prepared to hear what may achieve an actual workable deal, becomes absolutely stuck, who doesn’t hear the mediator’s message that no deal in the world is made without it working on some level for all involved. It’s the clients who desperately want to mediate to avoid court but who can’t make the correlation between that wish and the reality that they, as well as the other person will need to compromise. It’s the clients who sit, horns firmly entangled, who somehow believe that I as a mediator can solve the problem.

It is most of all those mediation clients who go so far along the mediation path but then hit the buffers. Reaching a decision founded on the financial reality when taken in the context of matrimonial law becomes beyond them. As a mediator you give your disinterested legal information and resolutely send them off to seek legal advice in the hope that will assist. And in the next mediation session there they are, still stuck, still scared at the very prospect of any resolution which doesn’t exactly match what they hope for.

So I give my legal information and their solicitors give their advice. We look at the alternatives to settlement. I talk about the delay and huge cost involved in a court application. I highlight the fact that only a minute percentage of those involved in court proceedings end up with a judge deciding the fate of the matrimonial finances.

It’s as if the client is deaf. He or she will often say they just want a judge to decide. Of course in saying that they have no recognition of the fact that the judge may well not decide how they would like! It’s a retreat into a safe place where some avuncular district judge is going to wave a magic wand and take away the whole horrible business of making a decision.

I understand the wish behind it. What can be scarier than making decisions which will affect the whole of your financial future? As we go through life, we tend to accrue what we have. Our lives are generally a process of gradual accumulation. Then, at the end of a marriage, I’m expected to demolish the whole built up over the years, decide how much of the resultant heap should be mine and start again all in one go. It’s hard.

Whether as lawyers or mediators we expect a great deal of our clients at a time when they are struggling in any event. However that reflects reality. Lawyers can only advise and guide. Clients have to decide. Mediators can guide and facilitate negotiations in the context of the legal framework. Clients alone can decide. Who wouldn’t at some point want a magic wand to be waved so that all could be resolved without any need to make choices which may be wrong?

The sad reality though is that magic wands don’t exist and that all our clients will at some point have to make those choices, excepting the handful of people who actually do have a judge hand down a decision. Mediators recommend mediation in part because it gives clients autonomy. We should recognize that isn’t something all our clients actually want. We can sometimes assist simply by recognizing with our clients that the whole process of resolving what happens when  a marriage ends is just plain hard and scary. We can make clear to our clients that we understand that they are facing harsh realities in difficult circumstances and that we respect how much that asks of them. The family justice system however will rarely absolve clients from taking personal responsibility.


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