February 14, 2011
Mediation and Collaborative Practice: Speed of Process v. Quality of Resolution
One of the benefits of working out your divorce or probate matter in a non-adversarial process like mediation or Collaborative Practice is that the people involved, not the professionals or the courts, decide how fast or slow the process will go. How much this is experienced as a benefit has to do with how close everyone’s ideas are about pacing. In general, people agree on pacing, like a Wife and Husband working out their divorce will often decide to meet at regular intervals that they can both manage, or a set of siblings resolving their parent’s estate will decide to have conference calls at certain procedural junctures.
Once in a while people do not agree on pacing, and then a maxim is, “the process goes as slowly as the slowest person.” If that slow pace upsets the other person, professionals support people to negotiate a realistic compromise so that both people feel their needs for pacing are respected. And most of the time, even the slowest person is faster than a court process or a lawyer negotiated process would be…
But another, not uncommon, pacing conversation arises when the clients want to go faster than the professionals think is wise. This leads to a conversation on speed versus quality of the resolution, and professionals often remind clients that there can be an inverse relationship between the two. It’s understandable that people in a painful situation often focus on the end of the process, the relief, and want it to happen as soon as possible. But speed can mean overlooking important information or resources, or having a skewed perspective about the long-term effects of the agreement.
For instance, I had a client who wanted to get divorced quickly to get remarried. Despite my encouragement to see a consulting attorney as the other spouse was doing, this client chose to not get that input and asked to sign the final paperwork right away. I reflected back that I didn’t think that hurrying for an outcome was in this client’s best interests, but the client responded with cogent, personal reasons why it was, so my ethical concerns were alleviated. But over one year after their divorce was final this client and the ex-spouse were in my office again to re-negotiate child support and this client was upset with the effect their previous agreement had on that new negotiation. This client said ruefully that if the client had it to do over again this client would see an attorney because maybe a discussion with one would’ve had this client weigh the options this client had at the first time around differently.
While it’s true that consensual dispute resolution processes like mediation and Collaborative Practice enable clients to dictate the pace, I recommend people weigh the consequences of going as fast as possible with the chance that they may look back on their agreement wishing that they’d taken a bit more time focusing on the quality of the resolution—not just on getting it done.