Why Wouldn’t You?

Why wouldn’t you prefer any form of dispute resolution to applying to court? It seems such a no-brainer that the question would seem entirely unnecessary. However here we are with family courts breaking under the strain and judges and other court staff buckling under inhuman pressure. Why?

Well one answer may be that, without access to legal advice, many litigants in person fail to understand the court process and its limitations. They don’t know the law so can’t foretell the basis on which an order is likely to be made. They therefore don’t have the knowledge on which to settle. Another answer is that to assume a wish to achieve a settled outcome is to assume that all us humans are rational beings when experience tells us that simply isn’t so.

The reality also is that any form of negotiated settlement, however reached, requires us to accept responsibility and to make our own decisions. Even a solicitor led negotiation is only  successful when the clients involved face up to the fact that they have to make the final choice. Solicitors require instructions which only their clients can give. How often do two divorce lawyers who have a good working relationship say to each other that they could settle everything if it weren’t for their clients?

I guess as well that it feels a lot more like making all the choices when you sit in a mediation room. There is no hiding place although a good mediator will allow you the time to go away, think and take advice before stepping over the cliff into the future.

Mediated outcomes require a huge amount of commitment on the part of the couples involved to resolving matters through the mediation process. The most solid commitment is rooted in a desire to achieve a solution that ensures some form of ongoing relationship, not only for the sake of children, but also as a recognition of all the two people once meant to each other and of the collective effort invested in building a life together. Whilst a mediator can- and does- bang on about the uncertainty, strain and financial cost of court and whilst avoiding court definitely does keep people in mediation, the ones which really work are those where the clients involved keep reminding themselves of their wish to retain self-respect and satisfaction in the outcome.

To do that demands a substantial level of maturity and a true determination to define the future for yourself rather than cede control to others. That’s not to say that even those couples don’t have their moments. We are after all only human. As their mediator however I have real respect for their effort. I see the emotional cost at various points during the process. Above all, I salute them and thank them for reminding me why mediation can be the best thing going.


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