Solicitors’ ping pong

We see a lot of people for MIAMs (Mediation Information and Assessment Meetings) who are going through a divorce. They have often been engaging solicitors fin what seems like a game of ping pong or months and months. They’ve been living in hope that these highly paid professionals will be able to negotiate a financial settlement. In their own eyes, that they haven’t been able to settle is usually not the fault of their solicitor. It’s because their with ex is being unreasonable. And so, their lawyer has said, “You need to make a court application to resolve this”. And to make a court application, court rules mean they have to undertake a MIAM first.

When we meet them, we ask them, “Before you spend money on going to court – a process which could take 15-18 months and might cost many tens of thousands of pounds – do not know how how strong your case is?”. And they don’t. Ever. They have been paying so much per hour for their solicitor that they haven’t for one moment thought that perhaps the solicitor may not have been going about helping them in the least expensive way.

All – not some, all -of these clients have no idea what a judge might decide if they go to court. Yet, they their lawyers have made them feel certain that they are right. After all, why would lawyers be suggesting court if they weren’t right. They are confident that the judge will be on their side. And they are sure it is worth them spending tens of thousands of pounds on lawyers’ fees in order to achieve it. But this certainty is typically founded on little more than emotions. That they believe they are ‘in the right’ or are ‘being more reasonable’ is not any measure of what a judge would decide. They confidence comes not from legal certainty but is based on what they’ve seen happen to others, read in toxic media reports or have learned from a friend’s or family member’s own experience.

The term ‘legal entitlement’ is often misunderstood

At the same time, many of those we see strongly believe that they are legally entitled to 50% of the matrimonial assets. And some believe that they are entitled to more than 50%. The reality is rather different. English law offers no legal certainties as to settlement. The legal entitlement they have is to make a claim for a share of any asset or income. It’s for them to decide the share or, if not, for a judge to impose one.

If the law gave everyone an entitlement to a specific percentage of the assets, pensions or income, why on earth would there be any need for judges?

Fairness is not the measure of a proposal

Another problem is created  when disputants are told by their lawyer that their proposal is fair. By using the term ‘fair’ about their client’s proposal, lawyers plant ta seed in the mind of the same client that their spouse’s proposal must therefore be unfair. If they are making a fair offer, and the other person’s offer is unfair, surely the judge will give them what they are asking for? Big mistake. Just because a proposal is fair does not automatically make the other proposal unfair. Two proposals can be different, but each could be ‘fair’. The problem with fairness is it’s in the eye of the beholder. One lawyer’s view about what is fair or not may not be the same as the other lawyer’s view. Which means that it will be left .

So what’s the solution? The solution is to know your BATNA and WATNA. In other words, what realistically is the best outcome if you went to court, and what realistically would be the worst outcome. Knowing the range of outcomes is critical. Without knowing it you could end up accepting an offer you ought to reject. Equally, you could end up rejecting an offer you ought to accept.

Get your BATNA and WATNA

If you’re being told by your lawyer that you need to spend your money on going to court, shouldn’t you know how good your case is first? And to know how good your case is you will need your BATNA and WATNA? By that we mean knowing your best alternative to a negotiated agreement (BATNA) and your worst alternative to a negotiated agreement (WATNA), preferably in writing. It’s not enough for you to know “You are likely to get X”, “You deserve Y” or “Your position is entirely reasonable“. None of these will help you avoid accepting a proposal you should reject or rejecting a proposal you should accept. Understanding your BATNA and WATNA will..

During a mediation, we often recommend to clients that they get this advice from their lawyers. They are usually in a position to do this once we have helped them gain a full understanding of what the value of their assets, liabilities, incomes and expenditure are. It’s also important that they each know what they and the other are going to need going forwards. If a lawyer can’t provide your BATNA and WATNA, find one who can. Your future may depend on it.