Assessing whether any case is suitable for mediation isn’t an easy task. Like many things in life, knowing how to do it is a combination of science and art with a huge leavening of experience. I once sat in a meeting where a lot of very experienced family lawyers suggested that any family lawyer could assess suitability for mediation. I’m not clear how they could. If I’m trying to establish whether a particular process stands a chance of working, I’m pretty sure that I need to know what that process entails. Whilst anybody who wants to can read about the principles and main points of mediation, only a mediator actually knows how that all comes together and what is involved in trying to make the process work to best effect for each  couple. Just like many mediators I suspect I lost count a long time ago of those cases where a solicitor didn’t think mediation would work but I took a different view. Apart from anything else, as a mediator, you get the chance to meet both clients which in itself affords a unique perspective. Fewer but in a way harder are those cases which I feel are unsuitable where solicitors believe mediation is a good idea.

However experienced one is there are some cases that seem at first suitable after assessment meetings but which turn out not to be before they really get off the ground. That is because there are tests of the true level of engagement from clients even in setting up a mediation. How committed are they to the mediation process when push comes to shove?

One basic good initial indicator is the difficulty involved in setting a date for a first session. There can be battles between couples about who gets to pick the date. There are then others where there seems to be an insuperable problem with every date which the mediator offers. So what do you do? Well yes you want the mediation case but do you actually want a case which even in its embryonic stages is exhibiting symptoms that at least one client doesn’t really want to join in that process\?

All I can suggest is play hard ball. Indeed pass that ball right back to them. Put responsibility for finding a date on them if the initial attempts on your part are getting nowhere. If they both really want to join in mediation, they will come up with a date It is after all a sine qua non. If they don’t, it almost certainly was never meant to be. Mediation is all manner of good things but it is also hard work for participants. To deal with that they need to be really committed in the first place. You shepherding them into the process with a lot of effort on your part is no substitute for the genuine commitment which your clients will need.


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