The What And The How

It doesn’t matter whether you are mediating or advising a legal client. At some point you will need to have a hard conversation with a client about disclosure. That’s in fact much easier when you are a lawyer and it’s your client as you are free to give him or her the hard word. As a mediator, you have to be a great deal more circumspect whilst giving off an aura of implacable firmness.

I’m not talking about those clients who find the whole idea of disclosing anything including what they had for lunch abhorrent. It’s more a question of people understanding that full and frank disclosure means exactly what it says. It’s like turning out your pockets. It doesn’t matter whether it’s an inheritance or a lottery win post separation or something you feel very strongly should be excluded from division. The rules are that it’s all got to be evidenced. The reality is that, if a case goes to court, the judge has to consider the capital and income resources available. Section 25 doesn’t list exclusions. It doesn’t say that you can omit any reference to the whopping bonus you received 6 months after separation or anything else you feel shouldn’t be taken into account. It’s a global requirement.

Explaining all this is where my title comes from. I find that most mediation clients grasp the distinction between providing full information about what they have and then a discussion about how various different assets should be treated. They may not like it but they do get it.

Rather more difficult are those cases where one person is convinced that there’s a secret pot of gold, the ones where there is absolutely no trust whatsoever in what what may be in the first place. Those cases can be much more difficult as they can require a level of disclosure which can, quite reasonably, feel disproportionately onerous to the client being asked to provide it. All that you can say there, whether a lawyer whose client is the one being forensically examined. or a mediator is that it’s a sine qua non of negotiation that there is an established basis for trusting that “what” has been disclosed in full.

As to clients who are congenitally incapable of accepting the relevance and need to disclose their whole “what”, I’m afraid we mediators before very long pull the plug on mediation and pass the problem to lawyers and/or the courts. I always spell out to people when I meet them at the initial individual meetings that, for mediation to work, they will need to engage in the disclosure process. Whether they actually will or not only becomes apparent once mediation has started.


Comments are closed.