As children, when arguing with a sibling, we have a hard-wired instinct to find one of our parents to resolve the dispute. Yet, when we fall out with our partners, we’re not encouraged to follow this innate mechanism. Instead we seek our own champion in the hope that they will sort it out. The trouble with this is, when each has a champion, the champions’ views rarely correspond exactly.
Solicitors are trained to listen to their client’s side of the story and then suggest a solution. The solicitor, not their clients, are the owners of the solution and if it isn’t one the other party accepts, what tends to happen is that each solicitor struggles to impose their solution on the other. Any negotiations, such as they are, may consist of little more than a requirement for deep pockets, a need for emotional fortitude, and the willingness to take part in a slo-mo dutch auction – a high price that’s gradually lowered until someone accepts it. The negotiations are often hostile and can cause irreparable damage to a couples’ capacity to successfully co-parent into the future. Ask anyone who has gone through the wringer in this sort of process and few will say they felt the actual outcome was good for them or their families.
Mediators are trained to listen to both sides of the story, and then to provide an arena which allows each to express to the other what they think a reasonable outcome should be. Mediators can’t advise, but will use skills and techniques which encourages interest based negotiations which allow the couple to focus on first acknowledging what each needs. The discussions are more likely to be civil, brisk and provide an opportunity to couples to develop a new type of relationship – ideal for learning how to co-parent.
For these reasons, mediators are unarguably an entirely appropriate professional for couples to go and see as and when their relationships break down. The trouble is, it’s rarely the case that each party to the relationship reaches a decision that their marriage is over at the same time. Often one decides well before the other, which makes a simultaneous visit to a mediator unlikely. This may explain why more mediators are not seeing people in broken marriages at the earliest stage.
If only there was an alternative way which would enable more people to either follow their instinct of childhood or at least find a way of achieving better outcomes Well, there is. In fact there are many ways – some quite radical – and I’ll be exploring them in coming blogs, the first of which will take a look at a process which has been with us in England now for 8 years. Collaborative law.