14/11/2025
Kay's thoughts this Friday:
The role of the transition space is important.
In the work of Dr Adam Fraser – The Third Space – we are reminded that a transition space always exists, and I think we are encouraged by the text to see it as an opportunity to reset, refresh, redirect or just take a breath.
In case preparation, there is a period during which the audience is the other party and then there is the transition to the court being the audience. Different audiences can take a different approach to the same facts.
I suggest it is a good idea to remember that the letter you are writing may have different audiences and different interpretations.
A colleague drafted an incisive and perhaps painfully clear analysis of the other party’s case. The response was to dismiss it as having been written to please my colleague’s client. There was apparently no contemplation that it was a brutal rebuttal of their case.
A recognised transition space is the space where negotiations by correspondence end and mediation is planned. That last best offer becomes the offer you have already made and needs to be battered.
The transition between case assessment and formulation and the position to maximise a claim is often hard as the case plan is left bereft when an offer that might settle the matter is needed.
I once arrived at mediation with lots of law in mind only to be told by the mediator, “Yes but that won’t settle it today”.
This mindset transition is enormous and complex.
I long suggested to clients that they could not protect a financial relationship and a personal relationship simultaneously.
Perhaps now that might be seen as a desire to maintain coercive financial control in an intimate relationship.
Training in the Collaborative Practice space supports practitioners to accept the mindset transition as an opportunity, exciting and creative. Options need to be considered.
I would suggest you can’t maximise a financial outcome and a prospect of settlement simultaneously.
The transition between the advice on prospects and getting it done today is critical and can’t be achieved on the day in the room. Mediators are not magicians.
The transition space where this tension exists is the space the Central Practice Direction calls for from us all.