If you do crosswords why is it so much more frustrating to be left with one or two uncompleted clues than to have lots of blanks staring back at you? There are some crosswords where it feels as if you and the setter don’t inhabit the same planet let alone speak anything approaching the same language. Then there are others, like today’s, where you both seem to be on more or less the same page but there’s still that taunting one uncompleted clue.
Some mediations are like that. Not that, as a good, neutral mediator, you should have any investment in whether there is or isn’t an outcome. On one level, I don’t. Whilst I take my role in helping my clients try to reach a settlement very seriously and put a lot of effort into fulfilling that role, I know that it has to come from them. However, being honest and human, we all want to derive a sense of satisfaction from what we do so it would be a lie to say it doesn’t feel a whole lot better when a mediation leads to settlement than when it doesn’t.
As a mediator, you have to know when to call it a day. Mediation isn’t supposed to be an endurance test where clients and mediators are locked into the process even when it becomes clear that, with the best will in the world, there will be no resolution.
In some cases it’s blindingly obvious that all attempts at achieving a solution are doomed to failure. There are others though which are a bit like my crossword puzzle today. There will be just one point which can’t be settled. That can be for a whole host of reasons ranging from that point being a crucial lynch pin supporting the whole construct or it just being a question of one person feeling they have moved enough and can’t and won’t go another step. It’s harder to accept that that one sticking point means an end to mediation, particularly when the mediator knows, as I do from a previous incarnation, that all will almost certainly be resolved after a lot of time, effort and money have been expended on court proceedings.
That then raises an issue for the mediator although I firmly believe it shouldn’t. Some mediators will, in such cases, write up documents listing everything that has been settled whilst referring almost in passing to the thing that hasn’t been. I’ve even heard of a memorandum of understanding where it said that the principle of whether spousal maintenance should be paid wasn’t agreed. That’s a glaringly obvious example to illustrate the point that, in my view, unless there’s an actual settlement on all points, there isn’t one at all.
That one loose end is the thread which can cause the whole fabric to unravel. I’m an absolutist, or is it a realist? I know that one uncrossed “t” can mean that everything is back in play. Doing deals is just like doing the crossword. It doesn’t matter whether you have ten or just one uncompleted clue. It’s only done if it’s fully completed. After all, just look at the mess that came out of trying to create a backstop over the Irish border!Share: