Mediation column: Time for a reality check

Reality testing is a key part of mediation: the involvement of an impartial other, who facilitates a good conversation in difficult times, supporting reflection, questioning without judgment, bringing in clarity and listening, so that positions and issues are understood and explored and the “what might happen if…” is in the room.

The importance of being open to differing perspectives has been at the forefront of my mind this week after reading a report of a court judgment in which judge Simon Monty (Central London County Court) said the claimant saw “every piece of evidence as supportive of his case, whereas in fact his belief, which no doubt he strongly and genuinely holds, is based on no more than confirmation bias”. The claimant in this case was a litigant in person who was ordered to pay the defendants costs of £216,103.85. Gary Pammen had challenged his late father’s will, which had seen everything left to Gary’s sister and her daughter, leaving out Gary and their other siblings. Gary claimed his father’s will had been written without mental capacity in 2016, four years before he was diagnosed with dementia in 2020. The judge said it was a claim “based upon no more than suspicion” and that in his view it was “crystal clear, on a holistic evaluation of all the factual and expert evidence.. that Mr Pammen (senior) had testamentary capacity”. The judge added: “Gary is simply unable to accept that his father did not leave him, his sister Jackie or his brother Mark anything, and he now sees everything as confirming that his father did not understand what was going on.”

That last sentence offers sad insight. Something that could have been dealt with in a different arena, but which has no space in a court room. Grief and loss. Had these been part of a thoughtful conversation, there could have been a different outcome. But in court, outcomes are weighed on evidence, and lateral considerations are left at the door. And so, in this case, the balance sheet had ended thus:

• Estate worth £451,840
• Costs of £216,103.85, payable by Gary (no costs of his own having gone to court unrepresented, perhaps unaware he may find himself paying for the cost of advice to the other side, if he lost)
• The emotional toll of the process on both sides
• The emotional drivers that took the case all the way still unprocessed.

Grief and loss are accelerants to legal disputes, and in that context, the reality check plays a vital part. Mediation and problem-solving advocacy can do that. Other routes, including the building of a case using AI (that well-known sycophant) can give a case wings. Where is the reality check for a litigant in person? In the civil court, an adverse costs order may be a reality check only after the fact. Cases can be sent out for NCDR in both the civil and family courts, but it’s only in the family court where the MIAM requirement is embedded as a form of court gatekeeper. With the number of litigants-in-person on the rise,* perhaps that will extend to the civil court over time?

The legal system may be siloed in how it manages cases, but the human dimension of emotionally driven cases is universal. Considering case outcomes isn’t just about weighing evidence. It’s about understanding the psychological weight that is giving a case momentum. Pammen v Pammen is a salutary case on this.

I’d like to recommend a book I’m currently reading which explores why we can all get so easily stuck in a position that is not serving us. Negotiating the Non-negotiable by Daniel Shapiro, which describes how easy it is for us to succumb to hatred, anger and fear when our identity feels threatened, locking us into conflict. I won’t go into The Tribes Effect he describes (I hope you’ll read it for yourself) but I will cite his example of the willpower and support required to resist succumbing sometimes. It is the strategy used by the Greek hero Odysseus who was warned he would not survive his journey home after 10 long years of war if he could not resist the enchanting voices of the Sirens who bewitched sailors, compelling them to steer off course where they would crash on the rocks. “Before he set sail, Odysseus ordered his crew to put wax in their ears and tie him to the mast. If he begged to be released, they were to refuse his orders and bind him even tighter. With this plan in place, Odysseus and his men sailed safely past the Sirens.”

(*There are no official figures for Litigants in Person in the Civil Court, but as an indicator, the latest figures from the Family Court show that in January to March 2026, 49% of cases involved LiPs on both sides, and only 13% of cases had representation on both sides)

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