A new issue is now in the open and it affects the course of the dispute between parents and daughter. This happens in mediation as you peel off the leaves of the artichoke one by one.
The process is not a seamless transition from conflict to resolution. New issues do arise and you need to be alert, sensitive + imaginative. You are always being tested.
In this case, clearly, a fundamentally new feature has appeared. A property dispute has become a life+death issue. The mother is dying. The father will be alone. The daughter will be 100 miles away. The fiancée has pressures to utilise the daughter’s inheritance to finance his maintenance induced cash flow problems. Doesn’t this call for a pause, for time to reflect as the parties adjust to the new circumstances?
Can the daughter leave her parents while the mother is dying? Can the daughter move 100 miles away to accommodate her fiancee? This is separate and part of the effectiveness of the letter containing a vaguely worded promise to convey the apartment into the name of the daughter.
And what are your interests? To earn a larger fee by encouraging the parties to continue? That has to be wrong. The only interest you have is to assist the parties in resolving their problems. Your role, therefore, is to sense the moment, understand the interplay of emotions and recognise that a fundamental new issue has come into play. The daughter is the key and she has to wrestle with her priorities as she comes to terms with the new information – her mother’s shortness of life. So suggest to the parties that they deal with the news of the mother’s terminal illness and approach you if at any stage in the future they think you can assist. The mediator works for the benefit of the mediation not for him/herself. Some mediators overlook this point
Tomorrow – a key arbitration issue.
Do trade arbitrators + lawyer arbitrators share the same approach?