28 JUL 2014
Mediation Matters: Let professional mediators and solicitors work together so mediation thrives
When the Government’s Family Mediation Task Force report was
published early in July, a chorus of disapproval was heard from the solicitor
sector. This was slightly surprising, given the lawyer-dominated make-up of the
Task Force itself, a group that had been set up by the Justice Minister to
explore ways of reversing the disastrous post-LASPO crash in the take-up of
It’s easy for those of us working in professional mediation
to wish for more central money to be invested in to our work. So there was a welcome from many
mediators for the recommendation of publicly-funded MIAMs, and an increase in
the fee paid to mediators for MIAMs
for a set period. We’d all welcome more championing and marketing of
mediation from Government too; after all the Government tells us it wants
mediation to thrive.
But other measures aired by the Task Force potentially have
a far greater long-term impact on our profession and on the ability of
mediation to truly recover from the devastating impact of the last 18 months.
Let’s start a proper debate about two of them, both of which involve solicitor
interaction with mediators.
Seeing both parties together
NFM cautiously agrees that the Law Society and SRA should
consider whether regulations should be changed to enable solicitors to see both
parties together where they want that. Our view is that this could be very
helpful where legal advice is required on the options that are being developed
on an ongoing basis in mediation.
But there’s a big ‘if’, in our view. The solicitor really
must be able to demonstrate an understanding of what mediation can achieve and,
perhaps more challengingly, be supportive of mediated outcomes, even if those
outcomes threaten his or her ability to sell additional services to one or both
We believe that at present it is far too easy for solicitors
to disregard and undermine mediated outcomes – going against what’s truly best
for the family in the long-term,
because the solicitor is representing the interests of just one party.
We also believe this happens far too often. I’m not expecting
solicitors across the land to hold their hands up in admission, but would be
interested in comments. This could be genuinely seen as an opportunity to
put an end to the adversarial nature of family law.
I and other professional mediators fully understand
solicitors want their practices to thrive. But at a time when mediation stands
at a crossroads – the very reason the Task Force was established – the last
thing hard-pressed families need at their time of crisis is to be pushed into
agreeing to pay for legal services they cannot afford, when there are
better-value ways available that will provide them with durable long-term
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Whilst the report stopped short of making an outright
recommendation for a reduction in the threshold for conflict of interest and
cross-referral within the same solicitor firm, it made noises in that
direction. It suggested a review by the Family Mediation Council of current
bars to see if there are circumstances ‘in which intra-business referrals could
be permitted, subject to safeguards’.
It’s completely understandable that solicitor firms
operating in a competitive, commercial world want to increase sales and boost
their range of products. Banks and insurers cross-sell. Supermarkets do it.
Lawyers need and want to do so too.
But suggesting the bars might be lowered indicates a
fundamental misunderstanding of what professional mediation is, what it can
achieve, and just how it achieves its high agreement rates (currently 83% for
Worse still, allowing a closer bond between one arm of a
commercial business and another, a solicitor practice recommending itself,
would further threaten the take-up of mediation, just when the profession is
sensing tiny green shoots of recovery from compulsory MIAM legislation
following the LASPO disasters.
A key principle of mediation is its independence from
the legal process whilst couples are being guided through the issues that need
to be negotiated after separation. These issues include, but are by no
means limited to, legal issues. One party whose legal representative is
inviting the other party to participate in mediation in his/her own firm will
be seen as far from independent – partisan, in fact. This then leads to a
bigger downturn – people resist mediation because they perceive bias against
them: ‘It’s your lawyer. It won’t be
fair to me.’
More intra-business referral would reduce mediation’s scope
to a legal settlement-led process. Yet professional mediation reaches much
further than this. It is common for the team of mediators in NFM services to be
drawn from a range of backgrounds, including lawyers, psychologists, social
workers/ family court advisors, therapists and financial experts, available to
meet client need. After all, each party’s situation is unique; every case very
Cross referral from one arm of a lawyer firm to another
risks limiting the scope of mediation – at least the mass perception of
mediation - making as if there were a one-size-fits-all solution, which always
happened to involve solicitors, and only solicitors.
That isn’t what proper professional mediation is about, and
dumbing it down as if it were would risk the potential of the profession to
thrive in the way Government wants it to.
National Family Mediation looks forward to
engaging in a constructive debate on how divorce and separation is managed in
the future. We are keen to work with everyone who has a stake in this common
future – including the commercial solicitor sector, so your thoughts will be
read and absorbed with great interest.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.