- Posts: 33
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He explained to me that the mediator (known to him) would not be able to offer legal advice and that he had not dealt with one case where mediation had come up with a satisfactory result.
In most cases, apparently, work had to be done by solicitors to sort out the mediated agreement and in some cases the whole process had to start again from scratch.
It is often necessary to revamp a financial agreement made at mediation because it doesn't translate readily into a Consent Order. However, mediation can help dissipate anger and the fact that negotiations have taken place means there should at least be some understanding of where the other party is coming from. It is a whole lot cheaper to pay one mediator and the couple sit face to face to negotiate than pay separate lawyers to negotiate on your behalf. One option is to choose a solicitor mediator who can guide negotiations with a better knowledge of the law.
"Consider divorce. A good marriage is obviously a nonzero sum game, brimming with mutual cooperation. But even when it breaks down there are all sorts of reasons why a couple could benefit by continuing to cooperate, and treating their divorce, too, as non zero sum. As if child welfare were not a sufficient reason, the fees of two lawyers will make a nasty dent in the family finances. So obviously a sensible and civilized couple begin by going together to see one lawyer, don’t they?
Well, actually no. At least in England and, until recently, in all fifty states of the USA, the law, or more strictly-and significantly-the lawyers’ own professional code, doesn’t allow them to. Lawyers must accept only one member of a couple as a client. The other person is turned from the door, and either has no legal advice at all or is forced to go to another layer. And that is when the fun begins. In separate chambers but with one voice, the two lawyers immediately start referring to “us” and “them”. “Us”, you understand, doesn’t mean me and my wife; it means me and my lawyer against her and her lawyer. When the case comes to court, it is actually listed as “smith versus Smith”! It is assumed to be adversarial, whether the couple feel adversarial or not, whether or not they have specifically agreed that they want to be sensibly amicable. And who benefits from treating it as an “I win, you lose” tussle? The chances are, only the lawyers.
The hapless couple have been dragged into a zero sum game. For the lawyers, however, the case of Smith v. Smith is a nice fat nonzero sum game, with the Smiths providing the payoffs and the two professionals milking their clients’ joint account in elaborately coded cooperation. One way in which they cooperate is to make proposals that they both know the other side will not accept. This prompts a counter proposal that, again, both know is unacceptable. And so it goes on. Every letter, every telephone call exchanged between the cooperating “adversaries” adds another wad to the bill. With luck, this procedure can be dragged out for months or even years, with costs mounting in parallel. The lawyers don’t get together to work all this out. On the contrary, it is ironically their scrupulous separateness that is the chief instrument of their cooperation at the expense of the clients. The lawyer may not even be aware of what they are doing." (The Selfish Gene - Richard Dawkins)