I have experienced the following scenario 4 x this week which is why I feel compelled to write this blog.

A person makes contact with the mediator because they want themselves and their partner to go into mediation (This scenario assumes that this person’s motivations are legitimate ie to try and resolve things and not to look good in court when they get there, for example) to sort things out.

The mediator contacts the other person who decides that they want the reassurance and confidence of a solicitor ‘ on their side’ and decide to see a solicitor first which, on the face of it, is absolutely fine and sounds very sensible.

However, the solicitor recommends that they first send a letter setting out their client’s ‘position’.

This letter is misunderstood and misinterpreted (assuming that it is misinterpreted) as an attack requiring a defence, which it duly gets from the person who originally wanted to bring discussion about the options into mediate! And, so the conflict begins, by way of solicitors’ letters escalating the process of polarization and division.

If the ‘other person’ had first met with the mediator on their own in a confidential meeting (and encouraged to do so by the solicitor), the mediator would have listened to, empathized with, offered reassurances and connected with this person’s story and anxieties, explaining how mediation works to ensure that decisions in mediation are made together in a confidential safe environment in which people’s interests (and of course the children’s interests) are protected and agreements are reach. The mediator would offer a test drive of the mediation process to see if it can work for this couple and explains that it is often necessary and recommended to take advice from a solicitor along the way because mediator, being neutral, are not permitted to advise.

At the early stages, when people are considering their process options, the buzz words need to be ‘diffusion’ and ‘containment’ etc and not ‘division’ and ‘polarisation’.

A mediated agreement, with solicitors advice alongside, could cost £500-1000 Instead, negotiation by solicitors’ letters and court proceedings quickly escalate and might easily rise to many £1000’s, creating further entrenchment between the couple.

The irony is that at the first court hearing, if the ‘other person’ has not seen a mediator to find out about mediation, they are likely to direct them back to the mediator when this could have been done in the first place.

All we ask as mediators is that people find out from a mediator precisely what is being offered and perhaps even try it on for size before rejecting it. Come to a mediation information and assessment meeting (MIAM)

John Hind, Mediator/Lawyer