08 FEB 2016
Fear and loathing at the Family Mediation Council
The deadline's passed. Most of us didn't get there. By 'most of us', I'm identifying with the family lawyers who have trained as mediators and been mediating for thousands of couples over the years alongside their day-jobs as lawyers.
I've had several enquiries from other solicitors asking whether I can conduct a MIAM for their client. I've had to explain that I'm no longer qualified to do them. Not a good look, frankly, and I think it's bound to have some impact on my mediation practice and credibility as a mediator.
Very few family lawyers who act as mediators have troubled to become accredited over the years. There was no pressure to do so, and we were allowed to conduct MIAMs once we'd undertaken the training. I trained as a mediator with Resolution in 1997. It was a course lasting 9 full days and I've been mediating ever since. Not to a great extent, but regularly over the years. I also trained as a civil mediator, so I feel comfortable with the civil model with solicitors and barristers in attendance. And, more recently, I trained to undertake MIAMs.
So, along with virtually all the family lawyer mediators I know, I never got round to the formal accreditation process because there was no incentive. Mediations came through referrals, and the informal and highly sociable networking that family lawyers tap into with such enthusiasm.
Neither family nor civil mediators have been subject to any real scrutiny in the last 20 years. It has been a self-policing community, and, while the reputations of good mediators have blossomed, those who are unskilled - dangerous, even - are not excluded from practice. The Family Mediation Council is the umbrella group for a number of mediation organisations. It comprises Resolution, ADR Group (not limited to family mediation), the College of Mediators (ditto), the Family Mediators' Association (founded by luminaries such as Henry Brown), National Family Mediation (a not-for-profit organisation) and the Law Society.
The government's greater emphasis on family mediation in recent years (taking pressure and attention away from the Family Court car crash) has culminated in the creation of the Family Mediation Standards Board, whose function is to impose minimum standards on family mediators. Or, as the FMSB says, 'the accreditation process is intended to reinforce the increasingly important role family mediation now plays in the family justice system'.
The board is chaired by Robert Creighton (NHS and civil service background), and there are five other members: two barristers, a psychiatrist and two mediators, one of whom did qualify as a solicitor but gave up practice shortly afterwards. There's not a practising family solicitor amongst them.
Mr Creighton and his team took over regulation in March 2015, and, since then, there have been months of conflict and misinformation. It's been a fight largely behind closed doors, with we family lawyers as observers from the side lines. Every now and again we received an email from the FSMB, the FMC or Resolution. It was not until 15 December last year that Mr Creighton wrote to tell us that guidance was at last available as to whether we were going to be able to continue to conduct MIAMs without accreditation. On 18 December 2015, Resolution wrote to tell us they had raised a number of concerns with the Family Mediation Council and with Mr Creighton, but had been unable to reach an agreement to slow down the process or make any further interim arrangements. It was only at that point that I knew for sure that I was not going to be able to conduct MIAMs.
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Many of the requirements for accreditation are sensible, but the one that I think will make it difficult for most family lawyers relates to training. I checked with my mediation supervisor and realised that, although I'd done enough mediations to meet the requirements. I hadn't undertaken the minimum requirement of mediation training in the preceding two years.
I doubt many of my family mediation lawyer colleagues have managed it either. Twenty-two hours or CPD-accredited formal mediation training is pretty onerous. This is particularly true when we were not even aware of these new rules until partway through the two years. And, as lawyers, we obviously have to keep up-to-date with a lot of areas including compliance, tax ... not to mention the law.
So, it may be the end of the road for full-time family solicitors trying to preserve their role as mediators.
Ever since I trained, there's been a tension between lawyer mediators and the rest. I thought it was hilarious when I turned up on my first day and found our there were such deep divisions amongst mediators. Physician heal thyself, and all that.
In 2007 Hugh England, then-Director of the UK college of Family Mediators (defunct) and now Chairman of the FMC, wrote a perceptive article entitled 'Planet Family Mediation'. It discussed some of the very issues touched upon here, with one section headed 'Disarray: Different Groups, Warning Tribes', which dealt specifically with the lawyer mediators versus non-lawyer mediators problem. So has the FMC now addressed the problem before the introduction of the new accreditation criteria? I'm afraid not. Mr England replied to my concerns:
'It is true that Resolution recently proposed that the implementation of the framework should be delayed, but it later accepted that, as all the other Member Organisations were committed to the timetable as announced, the timetable would stand without alteration.'
He also said:
'It has been government policy to encourage mediation for some years. Its support for family mediation began in the 1990s when legal aid was first made available to eligible couples seeking divorce; various governments have subsequently made clear that they support the development of mediation and other approaches to dispute resolution - including lately widening the use of family mediation. The family mediator community - which includes substantial numbers of lawyer mediators - has welcomed these developments.
The FMS maintains good contact with the MoJ to promote further government support for family mediation.'
Lawyers almost invariably charge more than other mediators because they are in firms with high overheads and they have to be able to justify mediation as a commercial part of their practice. Against that, and certainly in relation to finance and more technical areas, there are not going to be many non-lawyer mediators with the grasp of the legislation and court procedure that we have.
There are a number of cases, particularly involving children's issues, where I would not begin to suggest that I was in any way better qualified, or as qualified, as other mediators.
But this government wants to justify its removal of legal aid by presenting the wider electorate with a cheap alternative to legal aid lawyers, and it runs the risk of doing more harm than good. If the government really wants to present family mediation as a viable alternative to the Family Court then it's going to need the support of the legal community.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.