Family Mediation Council consultation on family mediators drafting consent orders - Law Society response
3 February 2017
In November the Family Mediation Council released a consultation asking whether family mediators should be able to draft consent orders for both parties at the end of a successful mediation. The drafting of a consent order is not a reserved legal activity. This means that, under the law, anyone can assist with or write such an order providing that they do not present themselves as a solicitor if they are not entitled to do so.
The consultation asked three questions:
- Would the role of a mediator as an impartial third party in mediation be jeopardised by that mediator drafting a consent order, once a mediated agreement has been reached?
- Is it possible to draft a consent order without giving advice on its terms?
- Is it appropriate to draft a consent order without giving parties advice on its terms?
The Law Society's view is that mediators who possess the expertise to draft a legally compliant consent order should do so subject to effective rules on good practice being put in place, such as:
- The parties consent and understand what the mediator can and cannot do
- The status of any document produced is clear
- The importance of taking legal advice is emphasised as are the risks of not doing so
- The court is made aware that the consent order has been drafted without the parties receiving legal advice (if that is the case).
It goes without saying that no mediator should be obliged to draft a consent order.