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Mediation: why aren't you doing it yet?

by Tracey O'Dwyer
7 May 2016

One year ago, 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 - too slow for some mediation organisations, which have closed as a result.  

It is, of course, no surprise that mediation referrals tailed off following the removal of public funding for most family disputes: a large number of people who previously had access to publicly funded legal advice suddenly no longer had access to lawyers, and the lawyers were the very people who referred them to mediation. The legal aid quarterly statistics show that in the quarter from January to March 2013, which immediately preceded the removal of public funding, there were 3,282 family mediation ‘starts’ - ‘starts’ meaning that the matter progressed beyond the initial information meeting. For the same quarter in 2014, the figure was 1,752: a reduction of 47 per cent.

The government response to this drop was to make attending a MIAM compulsory from April 2014. This obligation only means that a party has to go the MIAM, not actually start mediation, as this would conflict with the fundamental principle that mediation should be voluntary. Mediation starts have increased a little each month since then, with 1,902 starts in July to September 2014, and 1,990 in October to December 2014, the most recent figures available. But this is still nowhere near the figure reached before legal aid was removed. The great majority of mediation starts are in relation to children, roughly outnumbering finances by four to one.

There are no figures available for privately funded referrals to mediation, save for anecdotal evidence, which indicates that the take up is still very slow, with many mediators struggling to get their practices off the ground.

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.

Resolution’s Manifesto for Family Law makes various recommendations to the government. These include changing the way MIAMs are described and delivered, recommending that they are renamed ‘Advice and Information Meetings’, or ‘AIMs’. It then goes on to propose, “Make AIMs available earlier in the separation process, before an application to court is considered. This would enable couples to find out at the outset about available options and choose the right one for them. This is common practice among Resolution members, and we believe this approach should be available to everyone.” Not all lawyers adhere to Resolution’s Code of Practice. Indeed, sadly, not all members of Resolution abide by the code all of the time.

Whether one is a member of Resolution or not, we should be heeding the Law Society’s Family Law Protocol, now in its third edition. How many firms have got an up-to-date version? Paragraph 1.5.3 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 ten pages to the topic in its chapter on alternative dispute resolution.

Still, in every geographical area, there are certain lawyers, who, when they find them acting ‘on the other side’ make their fellow professionals sigh, or groan in dismay. These are the lawyers who you know will not encourage, and in some cases actively discourage, mediation or other alternative dispute resolution methods. So why is there a hardcore of lawyers who just love to litigate, and send inflammatory correspondence? Sadly, the answer for some lies with their fees. They know that mediation will often be quicker and much more cost effective for their client. By contrast, the fees will mount up quickly with litigation, although at the risk of less client satisfaction, especially if a court order is imposed in fully contested proceedings. Perhaps they think that they will be relinquishing control to a mediator.

Happily these individuals are in the minority. However, there are many sensible lawyers, committed to acting in their clients’ best interests, still not understanding or recognising 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 to commence 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. Here are some 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 lawyers 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 lawyer cannot be fully involved in between mediation sessions, with your client bringing the documents and Forms E 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 lawyers; 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 lawyers 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!

About the author - Tracey O'Dwyer

Tracey O'Dwyer is a solicitor and mediator at Tony Roe Solicitors, Reading, and a member of the Law Society's Family Law Panel.


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