Penalty Shoot Outs

Anyone who knows me will tell you that my referencing football is so unlikely that they will question whether it’s actually me writing this. Put it down to a hot evening and the excited shouts from neighbours’ open French windows which made me turn on the television in a spirit of collective solidarity. Will I watch on Saturday? Who knows although it seems to me a tad rash to write off the Swedes who, can we remind ourselves, also qualified for the World Cup and have also made it to the quarter finals.

And anyway what on earth has this all to do with family law and mediation? Well, a bit. Something with a client made me think about relationships, what it takes to make them work and how easy it is for them to go pear shaped just because of an accumulation of little things whilst minimal thought and effort at an early stage can be all that’s needed to avoid catastrophe. In football analogy terms, a successful relationship is based on drawing most of the time. One person needs to win some of the points but that only works if he/she appreciates that the other needs to win some too. It’s all got to be a balance with the prize only being lifted if the overall result is a draw. Too much winning or losing can disturb the delicate balance to such an extent that the whole structure collapses. It follows that penalty shoot outs have no place in a viable relationship. The stakes are too high to take the risk.

Come separation though and the rules of engagement feel as if they change completely. The main problem is it doesn’t even feel that there’s a rule book anymore. That’s I guess where divorce lawyers and mediators come in. The traditional image of the lawyer is as the team manager strategizing their side to victory. Any experienced divorce lawyer knows that outright victory doesn’t exist. The job’s often a strange blend of coaching your own client whilst trying to understand the game plan of the other side.

What’s my role as a mediator? People might say I’m the referee which I suppose I am in some senses. Indeed there can be some mediation sessions where you start to feel that’s what you run the risk of being- the really difficult high conflict ones where you blow your whistle and flourish the red card threatening to send them both off, sometimes permanently.

In fact the better role is as the coach, a coach who has to persuade two opposing teams that they really will only achieve the best outcome if they can manage to play as one. Now that’s hard to do when they need to play the mediation game as one whilst each needs to score whatever goals really matter to them as individuals. As a mediator you get there- when you do- by introducing a rule book. There isn’t perhaps enough written about the importance of the basic structural rules which underpin the mediation process. They are vital in ensuring that people feel safe.

As a mediator you have the challenging job of getting both clients to understand that victory comes from collective endeavour. Settlement is predicated on each side winning something, attaining their important goals even if that means allowing a few in the net for the other person. After all, go to court and that’s what will happen. The most satisfying mediations are when you feel that the couple in the room with you really get the rules of the mediation game and are playing for both to win.

It follows of course that penalty shoot outs don’t work in mediation any more than they do in a successful marriage.



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