High conflict doesn’t have to mean court. Here’s how mediation can help….
8th November 2018 by Kenneth Clarke
Sometimes as a mediator I feel I possess the Midas touch, pulling family disputes from the brink of failure, whilst at other times I seem to be overwhelmed by the intransigence of bitter parties, rigidly holding on to fixed positions and seemingly nurturing total disrespect, both for their once cherished partner and the mediation process itself.
Repeating the mantra of the best case-worse -case scenario and the cost consequences of litigation to immovable disputants, can seem like talking to the proverbial brick wall, and can lead to both mediator and clients reaching for the exit door.
However, deadlock doesn’t have to mean defeat.
Three of my cases last month, all financial disputes, disprove that theory and the magic ingredients were the perseverance of the mediator and the parties, the trust the parties had for their mediator (and therefore the process) and patience in between sessions, which gave the participants time to react calmly, process the legal information and seek legal advice.
The birth of a solution in high conflict cases often requires a long gestation period.
One of my cases only had three sessions, but the arduous journey to resolution actually took nine months, nine months in which the parties gradually unravelled themselves from their entrenched positions, threatened litigation, faced the brink of failure, but finally faced the best-case, worse-case scenario and came to a settlement, saving themselves the time, uncertainty and substantial costs of court proceedings.
All three cases can be described as modest asset cases (the net assets being between £250-400,000), with a perfect solution being impossible to meet everyone’s needs. Compromise was inevitable, but this reality only dawned on the parties after the long gestation period.
One of the huge benefits of mediation is that it is not time limited. No court imposed deadlines to meet, no deadlines imposed by lawyers ticking away. The parties are free to dictate the pace and arrive at a solution that has had the benefit of time in which to ferment, solidify and satisfy both party’s needs, as expectations level out to accommodate the necessity for reasonableness on both sides.
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