I was interested to read the recent article in The Times (Lawyers should stop treating mediation as a tickbox exercise) claiming divorce lawyers should stop treating mediation as a tick box exercise. In my opinion, we don’t, never have and never will.
Helping people through a divorce should be a team effort. Part of that process is to recommend mediation, something that can help a couple sort out the real difficult bits of a separation. The divorce itself is the legal bit and straightforward to be honest, though rigid in its course. The real difficulty is sorting financial considerations and setting the arrangements related to children. Mediation can be a massive help with this. Any lawyer who sees this simply as a tick box exercise is bypassing an ally that can massively help on the journey.
Every initial conversation we have with a client talks them through the options to settle, what tends to be initially, a dispute. We start with them trying to come to mutual agreement, move on to negotiation, talk about the merits of mediation and options like arbitration. We always highlight that going to court should be seen as a last resort. It helps no one. It costs more money, takes more time and pretty much guarantees no one will get the outcome they want.
The Times article suggested lawyers aren’t doing enough to promote methods of dispute resolution that do not involve court. In our experience, this is simply not true.
The bottom line is that a mediator can help a couple reach agreement on key issues like arrangements for the children and the division of assets and financial settlements on divorce. Mediation brings in an expert in negotiation who can sit with both parties and their legal representation to offer an impartial view on how a route forward could be found. This does not need to happen only when there is a deadlock. It can be incredibly beneficial early in the process to manage expectations, highlight pitfalls and ensure people are in the right frame of mind to move things forward.
Since 2014, couples consulting a mediator has been a legal requirement. Latest figures show that, in 2017, only 60% did. The failure in the execution has to lie somewhere.
Perhaps the comment about lawyers treating mediation as a tick box exercise comes from the requirement for a MIAM (Mediation Information & Assessment Meeting). Where it is clear that mediation is not appropriate a MIAM is still required, at a cost to the client I might add, but these can be generated without the requirement for the parties to actually attend a meeting with a mediator. This may be why there is a perception in some quarters that MIAMs are treated cynically.
When mediation was made compulsory in family law cases the inference was that solicitors could not negotiate effectively for clients and so the Government waved a magic wand to fix the issue. Mediators were parachuted in and the problems was solved.
The reality is that not all cases are suitable for mediation and if I’m honest not all clients even want to consider it, some just will not consider any form of alternative dispute resolution and simply want their day in court, not matter how hard their lawyer tries to persuade them otherwise.
A mediation industry commentator painting family law specialists universally, as not valuing mediation, is only likely to garner spiky responses. The comments were guaranteed to get media coverage but, ultimately, ill-advised and not focused on helping families in crisis. We should all be committed to helping nurture better relationships for our clients, not scoring points against fellow professionals.
On a positive note, the article does highlight that mediation is especially important – and can be particularly effective – for parents. There are so many more potential flashpoints and a mediator can guide parents through this.
I do recognise that more could be done by a minority of lawyers to ensure hostility stays out of conversations. You see the divorce lawyers portrayed in soaps on TV and wonder where the inspiration comes from. Thankfully, the “Rottweiler lawyer” these days, who pursues an aggressive approach rather than a pragmatic and amicable one, is a rare breed. They are still there but have no place in modern family law. Indeed the professional body, Resolution, of which our lawyers are all members, is wholly committed to a non-confrontational approach and in our view mediation sits very comfortably with that.
As an industry, we need to work together to help clients. Taking pot-shots at each other to get some column inches in the press is not helping anyone.
The vast majority of mediators we’ve come across are very good and can help couples reach agreement. When selecting a mediator however it is important to make sure firstly that they have experience in family law, and more specifically in your type of case.
Going through a divorce, you need a team in your corner and a good mediator can be a team member for both sides.
Last summer we approached a number of mediators for their tips for a successful mediation – and these are contained in our blog – 20 family mediators share their top tips for a successful mediation, it’s a useful read for anyone looking for a mediator or about to go into the family law mediation process for the first time.
Michelle Brammer
Family lawyer, Derby
