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Win win - the advantages of mediation

by Tracey O’Dwyer
26 January 2017

Tracey O’Dwyer, solicitor and mediator at Tony Roe Solicitors, discusses the advantages of mediation. 

In the latest figures released by the Ministry of Justice, the number of private law family court cases started between July and September 2016 has increased by 14 per cent, compared to the same quarter in 2015.  

From looking at the figures it can be seen that litigation in private family cases reached a peak in April 2013, tailed off sharply for the next 12 months, and from April 2014, when attending a Mediation Information & Assessment Meeting (MIAM) became compulsory, litigation began a sure but steady rise. Leaving aside the unusual spike in April 2013 when everyone rushed to issue to beat the withdrawal of public funding, the latest statistics show that 22,262 private law family cases were started between July and September 2016, which is a slight increase on the 22,240 cases started between April and June 2012 before the changes.  

The Legal Aid figures published in December 2016 on MIAMs show that these are down by 17 per cent for July to September 2016, when compared to the same quarter in 2015, and are only around half of what they were prior to the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in April 2013. Private case figures are not available for MIAMs.

It is arguable that perhaps a drive for mediation alone might have reduced litigation. However, when coupled with a withdrawal of legal aid and the resulting increased number of litigants in person that I detail below, any hoped for reduction in litigation has been lost, by people facing a system without the benefit of legal advice. It is disappointing to see the rise of court cases started after April 2014, and the reduction in MIAMs, given the justice system’s push for mediation, and bearing in mind the potential benefits to both solicitors and their clients of mediation.

The latest legal aid figures show that 62 per cent of mediation outcomes involved successful agreements. There can be no doubt that in the right cases, mediation will produce an outcome with lower costs than litigation, in both financial terms and in terms of future relationships. Children cases are where it is the most obvious. That is not to say that all cases are suitable for mediation, but for cases that do have representation when solicitors raise it as an option, how many do so in an encouraging way?

I always feel that sending clients to mediation is beneficial to my practice, for a number of reasons.   

  • A much larger proportion of our cases now have a litigant in person as the other party. In 2011, around 50 per cent of private law cases both parties were represented. This has reduced to just over 20 per cent at the end of 2016, with the sharpest fall happening around April 2013 with the introduction of the legal aid changes. The figures for applicants only being represented has, by contrast, rose from 30 per cent to around 35 per cent over the same period. Dealing with a litigant in person opponent can be a challenge for lawyers, and a good mediator can be very useful to cut through some of the costly and sometimes frustrating correspondence. In the case of a solicitor mediator, they can also provide neutral legal advice to both parties.
  • Clients appreciate the fact that mediation is suggested in a positive way, even if they choose not to take the option. Many clients are distrustful of solicitors and their charges, and this seems to demonstrate to them that the primary goal is not to enrich the firm, so the suggestion builds trust.
  • We have all had that case where letters have gone to and fro arguing about a half hour here or there on child arrangements. We know in our heart of hearts that this is not about a half-hour argument; it is about ‘winning’. After a while it can become frustrating. Such issues and minutiae might well be simply resolved in mediation.
  • The majority of my clients come from referrals, with many of those being from clients who went, either successfully, or unsuccessfully, to mediation. Mediation might involve us less, but the happy clients make the referrals, so there’s more footfall through the door.
  • It is actually quite nice to have cases on one’s caseload that are not high conflict – who wants back-to-back litigation?

For the client the benefits of mediation are often financial, but also they do not have to live through the potential acrimony and distress of litigation, and its consequences on future relationships. They all feel proud if they resolve matters themselves in a dignified manner, and if they can move forward with some sort of civil relationship with the other party, especially where there are children involved. Win win.

So, if you are to refer a client to mediation, do you choose a solicitor or a non-lawyer mediation agency? In the past, habitually I referred matters to the local non-lawyer mediation organisations. In those days, solicitor mediators were more of a rarity, tended not to seek out the work and were much more costly than the local mediation services. Nowadays though, there is a whole new world of enthusiastic and legally trained solicitor mediators.

In my locality, that cost difference between solicitor mediators and local mediation services certainly appears to have reduced. Further, as a broad-brush statement, I have found that mediated agreements coming back from people who actually do our job, qualified solicitors, provide a lot more detail. For example, I have had mediated agreements come back from non-lawyers which place a lot of reliance on the parties agreeing certain issues in the future, whether financial or child arrangements.

This is lovely in the ideal world, but as solicitors we will be very wary of any agreement that does not nail everything down to an enforceable standard. I have also had mediation agreements fall apart when trying to resolve missing details that are essential to an order. In short, I have found that solicitor mediators produce agreements that can be drafted into an order without further ado.

I find there can be a benefit where you have a litigant in person as the other party, as I mentioned above, as a solicitor mediator can provide neutral legal advice and, often, manage unreasonable expectations of the outcome.

Finally, there is also the benefit of cross-referrals within our profession. As solicitors, we often receive enquiries on which we cannot accept instructions, either due to expertise, conflict, workload or other reasons. If you are regularly referring work to other solicitors for mediation, it would not be unreasonable to hope that they would bear you in mind for referrals for work they cannot accept. If after a period of time they don’t, then there will be others who do. It’s networking, and cross-referring, and, it could be said, helping our professional colleagues survive in an increasingly competitive market!


Family court statistics quarterly

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