Why Many Clients Say They Wish They Had Come to Mediation Sooner

One of the most common reflections I hear from clients attending mediation is that they wish they had come sooner.  Sadly, in many cases the opportunity for mediation only comes after a significant amount of money has been spent and the battle lines have already been drawn.

Granted, attending mediation does not guarantee that a dispute will be resolved. Sometimes only part of the conflict is resolved, with the remaining issues requiring legal intervention and determination. At other times, the mediation may simply help the parties identify and define what is truly in dispute.

Having said that, mediation does provide the parties with an opportunity to jointly attempt to resolve the issues in dispute. And, where this is successful, their families (in particular the children) are often able to begin moving forward sooner, rather than remaining caught up in the ongoing conflict.

Weighed against the financial, emotional and relational cost of prolonged conflict, the potential benefits of attempting mediation far outweighs the risks of not trying at all.

I have come to realise from my years of mediation that the question is not whether mediation will resolve the parties’ dispute (that may or may not happen depending on the circumstances of the matter and the willingness of the parties). A better question, is whether the conflict can afford not to be given this opportunity.

Why Do Clients Often Wish They Had Come Sooner?

There is seldom a single reason. Generall it is a combination of factors that become apparent for the clients once they start the process and begin to experience the many benefits that it offers.

In some matters, it might be the realisation that the financial resources consumed by the ongoing dispute, could otherwise have been used to support the family (or assist the parties in the rebuilding their own lives). In other matters, it might be the realisation that the conflict that started off as something that could have been resolved, has now morphed into an almost uncontainable dispute with a complete breakdown of trust between the parties.

For families with children, the passage of time can have additional consequences. Children are often exposed to ongoing tension and conflict for longer than necessary, despite both parents wanting what is best for them. The impact of this exposure may have serious psychological ramifications for the children later in life, particularly where there has been parental alienation and estrangement. While mediation cannot undo the effects of the conflict, it may provide an opportunity to reduce it sooner for the sake of the children’s well-being.

What Can Mediation Realistically Achieve?

There is a common misconception that mediation is only successful if every issue is resolved and a complete agreement is reached. But, in practice, success can take many forms, even where there is not a complete settlement of a matter.

The reality with mediation is that:

• Sometimes it results in a full settlement of all the issues in dispute.
• Sometimes it results in an agreement on only some of the issues, but with a narrowing of the matters that might still require determination by the Court. 
• Sometimes the process helps the parties to better understand each other’s concerns, priorities and interests, with settlement only coming later after there has been time to reflect on these things.
• Sometimes it helps the parties to immediately identify the real issues in dispute, allowing them to focus their attention on what genuinely requires resolution and not get caught up in any side-shows on the other issues.

Is Mediation Appropriate in Every Matter?

No. There are some disputes that may require judicial determination and as such,  would not be appropriate for mediation. For example, matters where legal principles need to be clarified or enforced by a court. Mediation may also not be appropriate in those instances where there is domestic violence, unequal negotiating power, and/or a complete lack of good faith transparency regarding financial and other issues whether on one or both parties’ side. In cases such as these, judicial intervention may be more appropriate.

Mediation is not a replacement for the legal system. The legal system is a necessary system, particularly in family law matters where there is the need for a higher authority that looks out for and safeguards the interests of minor children.

Mediation is however an option available to parties who wish to explore whether a mutually acceptable resolution can be reached by them.

A Different Question

When discussing mediation with clients, the focus is often placed on whether the process will succeed. Experience has however taught me that there may be a more useful question to ask. And that question is not whether mediation will resolve the parties’ dispute (that may or may not happen depending on the circumstances of the matter and the willingness of the parties to resolve their dispute at mediation). A better question is whether the conflict can afford not to be given this opportunity.