Magical Thinking

Impasse. That wonderful stuck point in mediation. I mean real impasse where you have already explored every possible way out of the cul de sac. It’s that stage where you have tried all your well honed mediation skills. You have gone over and over the financial realities on your flip chart and considered all manner of options. You have dished out your legal information. You have tried your full range of mediation manoeuvres. You are, quite frankly, worn out. Being impartial doesn’t mean you have to ignore the voice in your head as you face the flip chart one last time that tells you this couple just aren’t going to make that leap towards settlement. Being honest, all you want to do is go home at that point.

Mediation neutrality means that, whilst you are allowed to feel worn out (being human and not a saint), you can’t be concerned about the fact that an outcome isn’t in the offing. That doesn’t mean that you don’t try your best. It just means that you have to remain firmly detached from whether your clients achieve settlement or not. However you can, indeed should, analyse why, despite the fact that each couple has to resolve financial issues one way or another, certain clients just can’t manage to close the distances between them. Let me be clear. I’m talking about cases where the disclosure is complete and both clients have had the benefit of consideration of and legal advice on what the outcome is likely to be. Everything external is in place.

In my experience a frequent sticking point lies in the magical thinking around what a judge will do. Some mediation clients, rather than make the leap of faith which any settlement entails, whatever process is used, cling to the notion that a godlike judge will ensure that all goes their way. There is something else at play. It’s not just a belief in a judicial outcome vindicating a particular position. It’s often a reluctance to accept personal responsibility for making such an important decision.

Mediators and family lawyers know how long drawn out and costly a court application will be although I am often stunned to hear from my mediation clients that their lawyer hasn’t actually quoted the possible costs of a court application. Beyond the time and cost involved, what we now know is what most practising lawyers already deduced from their own case load. I apologise as I can’t find the reference but I know that I read recently that, of those cases where there is an application to court, only 9% result in a judge decided order. In a letter (2018 Family Law 1358), Emma Hitchings and Joanna Miles refer to their study of 400 cases. Of those where there was a court application, only 5% resulted in a judge deciding the outcome.

So, when faced by a magical thinker, you can spell out that the strong probability is that no judge will actually hand down a decision. The likelihood is that compromise will happen somewhere along the road. So, before sending your couple on their way armed with their court forms, you really should ask why go to all that bother when the figures suggest that they are unlikely to escape the need to settle at some stage. Isn’t it worth trying to get there before being embroiled in the court system, whether in mediation, arbitration, private FDR or solicitor led negotiations?


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