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Mediation - why aren't you doing it?

14 January 2016

As part of #FamilyMediationWeek, Tracey O'Dwyer provides an overview of the benefits of mediation, and addresses some common concerns.

The Children and Families Act 2014 made it compulsory for most separating parties wishing to make an application in relation to their children or finances to attend a Mediation Information and Assessment Meeting (MIAM). Despite this initiative, mediation has failed to recover from the blow dealt by legal aid reforms. And although there have been some recent increases in numbers attending MIAMs and mediation starts, growth in mediation remains painfully slow.

But why is mediation used in so few cases? The legal aid statistics show that from January to December 2014, 65 per cent of mediations resulted in a successful agreement, with broken down figures showing that 69 per cent of these related to children issues, and 59 per cent related to property and finances. So there is no doubting the fact that mediation can be, and mostly is, successful.

We should be heeding the Law Society's Family Law Protocol, now in its fourth edition. How many firms have got an up-to-date version? Paragraph 1.6.4 of the Protocol outlines the need to consider with one's client all forms of dispute resolution, including mediation. There's no excuse for family lawyers not to have a decent working knowledge of mediation and an awareness of its benefits, as the Protocol devotes several pages to the topic in its chapter on alternative dispute resolution. 

Many lawyers, committed to acting in their clients' best interests, still appear not to understand or recognise the benefits that mediation could bring. I have heard of people saying they were told by their lawyer to go to the MIAM 'to tick the box', and advised to decline mediation. I have been surprised at how often mediation has been refused, or an application has been issued, where I have thought it would be a very beneficial option.

Common concerns and possible answers

My client is vulnerable / there is a power imbalance

A valid concern, but this can be surmountable in many cases. Clearly the mediator has an important role here, and should be trained to pick up on such a situation, putting strategies in place to assist, or terminating mediation if necessary. There is also the possibility of solicitors on both sides accompanying their client to mediation if all parties agree. You would need to be prepared to take a back seat and not take an active role, but you would be able to act as protector for your client and give advice as needed. There is also shuttle mediation, where the parties do not sit in the same room, with the mediator, or even co-mediators, going between the two.

The finances are complex / the other party will not be transparent

There is no reason why you, as the client's solicitor, cannot be fully involved in between mediation sessions, with your client bringing the documents and Forms E (financial statement forms) to you for advice. You can still advise your client on questions to ask, and the need for full disclosure before any negotiations. Naturally, if this remains an issue mediation may not be suitable, but with the realisation that court is the alternative, many people will cooperate. With regards to complexity, joint experts can be appointed, and it does, of course, remain open to your client to seek their own expert advice.

It will never work / they can't stand each other

Put some faith in the mediator! A good mediator is trained to find ways to give it the best chance to work, and sometimes co-mediation can be a possibility, with two mediators: perhaps one lawyer and one non-lawyer. Often cases like this, where the parties can't stand each other, are the ones that mediation can be of most benefit to, especially if there are children.

It is important to realise that mediation does not cut out the solicitors; we still have an important role to play. Most people will still benefit from a lawyer in their corner, to give them advice at the outset, throughout the process as required, and to draft agreements / orders if necessary.

In my experience, the clients I have sent to mediation have been the happiest ones at the end, thus the ones most likely to send other clients my way! Clearly mediation is not suitable for every case, but solicitors can take pride in encouraging it where it is suitable, and playing a part in minimising conflict and empowering clients at a very difficult time. Why not approach a friendly local mediator, and find out more about how it works and how they approach mediation? I bet they'd love to speak to you, and it might be the reassurance you need to get on board.

Tracey O'Dwyer is a family solicitor at Tony Roe Solicitors, accredited Law Society Family Panel member, and mediator trained by Resolution.

Download part 1 of the Family Law Protocol fourth edition for free (PDF)

Check out the activity around #FamilyMediationWeek on Twitter

Tags: mediation

About the author

Tony Roe is at Penningtons Manches Cooper. He is also a member of our Small Firms Division committee.

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