I’m a passionate advocate of my mediation clients having legal advice in parallel with the mediation process. Whilst I may bore them to death with legal information, that’s neutral. It’s essential in my view when clients’ whole financial future is being discussed that they avail themselves of their own legal advice. That needs to between sessions so the advice is factored into the mediation, not arriving after it’s all over and too late. I can’t force my mediation clients to see a lawyer but I’m emphatic about the necessity and often end up steering people in a lawyer’s direction. It may be that I’m in part an unreformed divorce lawyer. I actually think it’s a recognition of the fact that mediated settlements sit in the framework of the family justice system and that it’s crucial that people have every opportunity to know and consider their options and entitlements. My experience is that one of the most powerful mediation tools is what the law is and what rights and considerations lie in that law.
All that preamble is I feel necessary as what I’m about to say may seem counter to the benefits of legal advice. It’s not at all. However, when you as a mediation participant’s lawyer have advised your client and know they have understood that advice, you maybe then have to trust them to make their own choices as to what they do with it. They may come back to you with a mediated settlement that varies from your advice, at least in certain regards. When you know they haven’t got there in the dark about what could have been, how much should you respect their choice as long as it seems clear it was freely made? A well drafted memorandum of understanding should make clear why choices were made to include what possibilities were considered and, if they were, why they were discarded.
Isn’t movement to positions which weren’t earlier advocated exactly what happens in the long run with lawyer negotiated settlements, whether on a purely voluntary basis or in the shadow of court proceedings? How often does a client emerge from a FDR confused as to why exactly they have given up a point which until then has been the holy grail of what’s achievable? If clients have had robust advice as to best and worst possible outcomes and have been willing to hear the worst, hopefully that doesn’t come as too much of a surprise. The reality is however that the negotiating process refines and changes expectations. It has to as, particularly when there is a court application, clients have to take on board the fact that there’s another side to the argument which at the end of the day a judge is obliged to weigh in the scales.
I’m not talking here about mad settlements which represent a wholesale capitulation rather than a compromise which lies in the great grey area of what a court outcome may be. Mediation is a fast tracked negotiation if you like where you are from the start immediately in the presence of the other side of the argument. Mediation puts right in front of you on one flip chart the crucial factors of resources and needs. It requires an assessment of how those resources (very finite for most people) can possibly work to meet both sets of needs.
What also comes into it are other factors which are largely absent from negotiations at the length of your lawyers’ arms. Maybe that’s the area that’s most worrying to legal advisers. Clients weigh not only the financial pros and cons but also such things as wanting there to be at least one home in that crucial catchment area, what they know their children want in terms of staying close to friends and social activities, acknowledging that they actually want something better than a shed for their children to stay in when with the other parent, that they want to be able to go on as parents together rather than mortal enemies who will never be able to meet each other’s eyes. So “Yes” there may sometimes be slightly surprising outcomes. However, as long as you know that your client has been told the possibilities and you can see that they have weighed them up, is it so wrong if they sometimes make their own choices? We all know that people going through divorce have a whole hinterland to which we are only partially privy.
Which brings me to the title of this. A client sat back at the end of a session, looked at the other client and said that was hard work but we’ve decided something as adults. That was said with a note of triumph. There was a real feeling for me that that client felt as if the power to be a grown up autonomous human being had returned.Share: