Is It Ever Okay to Just Give In?

“I don't care; I just want to get this over with.”

{3:45 minutes to read} When those words are spoken by a client in mediation, I always get a little twinge of dread.

To the client, this makes perfect sense. Clients choose mediation to reduce cost, reduce turmoil and proceed as quickly as possible to a separation agreement. So, why not just give in so your matter can be resolved?

If it’s a relatively minor point that is in contention, then, sure, give in and move on if this is within your parameters for a an overall settlement.

What causes me pause is when this is said, in exasperation, over a major point that needs further exploration and discussion before the client can fully say yea or nay.

My fear is that when the feeling of frustration over the pace of the mediation process is long gone, the client is confronted with the ramifications of that decision and there will be regret, possibly even dissatisfaction with the entire settlement and mediation process.

So, what do I do when I hear those words and the other party is just dying to take this offer and move on?

• I explore why the client is saying that.

• I ask them to explain why their stated reasons for opposing it are no longer valid.

• I reality test and ask them to put themselves 6 months or a year or 2 in the future and see if they would still feel the same way.

Then, if I am sure they understand what they are doing and the consequences of their decision:

• I will reiterate that they are in mediation and have the right to make informed decisions for whatever reason they choose.

• I will put language in the agreement indicating they were fully informed of other options and made the decision in recognition of the possible future consequences of it.

• I might also possibly require that they consult with an attorney in order to help ensure the future viability of the agreement before I would feel comfortable drafting it.

Sometimes after that, a client will acknowledge maybe he or she spoke too soon. However, I’ve also learned that while I may see impending doom on the horizon, for a client, it can be a freedom and release that is well worth whatever they are relinquishing.

I had one of those clients a few years ago, who in spite of having a rather aggressive litigator as an attorney, gave up significant assets and support, just because he wanted to be separated NOW. The couple did return to mediation recently, and while he acknowledged it was a struggle living with the decisions he made, he was not consumed with regret, angry over the process or even angry with his former wife. It was worth it to him to move on when he did.

So, while there may be cases where those words could mean trouble, in other cases where it’s a fully explored and informed decision, it could well be worth the sacrifice.

Social Media Comments

Thanks for the thoughtful article, Clare. As you say, one needs to reality test and make sure that the client understands the implications, but in the end, it is their decision.

Nancy Radford