No Brainer

“No Brainer”- something so self-evident that there should be no hesitation involved before adopting it. That’s the phrase used to me by somebody I know who has no background in the law or mediation when I was talking about a call I’ld had from a possible client. The person calling explained their desire for help in sorting out children and financial issues following separation whilst keeping things as amicable as possible and not incurring high legal fees.

So far so good. However, as all my fellow mediators will know, that’s only half the story. As I explained to my friend, this promising enquiry would probably go nowhere as that would mean the other member of the couple also being prepared to give mediation a try. My experience is that far fewer than half of such enquiries go anywhere. The person not initiating the contact had first to be persuaded that mediation is a good idea.

Which is where the “no brainer” phrase came in. It seemed to my friend absolutely self-evident that, given there are things to be resolved, many separating couples would leap at the chance to sit down with a mediator who would be able to give them legal information, pull together the financial disclosure and help them negotiate an outcome.

Now I accept that mediation is far from for everybody. However the reality is that is for far more people than actually take it up. Is that because we mediators collectively have historically devoted a lot more time to tussling between our professional bodies than to selling the concept and our profession? Whilst that may have been the case, the position has certainly changed since the genesis of the Family Mediation Council, the establishment of the standards framework and the sense that we mediators are all working together in a way that we didn’t before. Add to that the fact that the government has supported, indeed encouraged, the use of mediation. After all the requirement to attend a MIAM in most cases before applying to court has now been statue law for almost 5 1/2 years.

One answer lies right there. Despite that statutory requirement, courts are still not actually applying the law with any degree of consistency, to include the consideration once an application has been made to adjourn while dispute resolution is explored. There are notable exceptions, particularly in children matters. I have however still to have a finance case where the judge decided that the possibilities of mediation should be explored. That’s mind boggling when we know that the courts are struggling with the volume of cases and litigants in person. It’s shocking in finance cases where, if the parties are legally represented, the costs are huge and the assets and income often so limited that real creativity is needed to achieve a solution that will work for both adults and the family as a whole.

The potential of mediation isn’t rocket science, to continue with the clich├ęs. How to persuade more people of that fact is however a problem to which we mediators collectively seem unable to find a solution.


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