Balancing Acts

I absolutely get that many clients in mediation find it hard to begin to see that the other person has interests and needs which will have to be taken into consideration. If I’m upset, angry, hurting and scared about my own financial future, I’m not going to be looking all that much, at least at the outset, at what anybody else needs. One of the dynamics of the mediation process is indeed that shift when both people start to recognise that things have to work for both of them. The plain fact is that no deal is ever done unless it works on some level for all concerned. Dare I mention the Brexit fiasco where any recognition of that basic fact seems to have been ignored right from the start and where satisfaction of all the competing wants seems even more remote a prospect now than it may have been- at least for the majority- in 2016.

It is part of the mediator’s job to move clients along so that they look at what is there and how it can be used to meet both their future needs. It’s one of the beauties of mediation that people can do that side by side in the same room. However there are still often areas where there are two equally valid perspectives and thus competing outcomes. Yet the one thing we all know is that, whether through agreement or a court imposed order, only one of those outcomes will win the day.

That is where cogent and realistic legal advice comes in. When I was still working as a family lawyer, I tried my best to give clients rounded advice. After all, section 25 requires consideration of what’s available and also how both people’s reasonable needs are to be met. The judge, if it comes to that, is obliged therefore to perform a balancing act. The problem is that no legal adviser can guarantee exactly where the scales are going to land. It’s a bit like me using my Mum’s old wedding present scales with actual weights where I stand and watch and wait until the balance settles.

If your client is in mediation and comes to you for advice between sessions, that client needs to know not only what the best outcome may be on a sunny Tuesday, but also the worst. Many solicitors routinely give that advice in any case. After all it’s only when a client knows the range of possible outcomes that he or she can decide where they may want the scales to settle. There are so many other than legal imponderables in the balance, not least sheer fatigue and the cost of not settling.

If you have a client who is mediating please do let them know the cons of their case and the pros of that of the other person so that your client can reach his or her own decision. Most- I accept not all- people are after all realists.


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