Mediation Voucher Scheme
By Euan Davidson
euandavidson@godalmingfamilymediation.co.uk
9th March 2014
I am always more than a little wary about writing posts that might appear to be an attempt to undermine new and exciting developments in the mediation world in order to preserve the status quo. However, I am even more aware of the need to provide a high quality and transparent mediation service to anyone who decides to attempt mediation and I feel that it is important to point out when there is a danger that new developments are not in line with this goal, and it is for this reason that I feel that it is helpful to consider the growing move towards divorce and mediation packages, including some which claim to be fixed fee packages.
To start with the issue of fixed fee packages, as with any other service, such as a car MOT or trip to the dentist for root canal treatment, fixed fees can be attractive but the devil is always in the detail. Is it really possible that a professional will be prepared to spend endless time and energy sorting out your problems for a fixed fee, especially when dealing with something as complex as a divorce? The answer is clearly no. There may well be relatively straightforward divorces where there are few, if any, significant assets, where there are no children to provide for and where there is little chance of any argument between the parties, in which case the fixed fee approach might make sense for the mediator and the parties, but if there are pensions, a family home, children, resentment and anger or one of many other potential complexities to consider then, quite frankly, the one size fits all approach is simply not appropriate. This means that the mediator will either need to have a series of exemptions or add-ons, that will hopefully be clearly contained within their terms and conditions, or simply not be interested in assisting to the best of their abilities in any cases that are not straightforward, unless of course the mediator simply has a passion for helping divorcing couples without any concern for the bottom line. Indeed, I found myself in danger of falling into this latter category when I experimented with a fixed fee package system myself a couple of years ago and I realised that at best is was simply an advertising gimmick to try to attract new clients but at worst a disincentive for me to do the best that I could to enable the parties to reach sustainable and informed decisions once the profitable part of the process had been completed. Of course, I never knowingly allowed this disincentive to affect my practice but it taught me a valuable lesson and I am now even more wary when I see advertisements from any professional offering fixed fee services.
Then comes the issue of offering to assist the clients to file for divorce as part of the mediation process. Whilst I will always explain to clients that it is not too difficult to DIY the divorce process itself as it is essentially an administrative procedure from the court’s perspective, I also explain that it is very important that both clients are clear that they have the right to seek independent legal advice before making such a life-changing decision and before signing their name to any legal documents. As a mediator, I potentially have a lot of power to influence the decisions that are made and, in line with one of the principles of mediation, it is vital that I do not stray into the arena of providing legal advice to the parties. I could start producing divorce papers during a session and then ask the clients to sign them so that they can be sent to the court, under the guise that I am trying to keep the process moving forwards for their benefit but in the knowledge that what I am actually doing is improving my success rate and, when there is a fixed fee in play, in order to ensure that I can wrap the case up and claim the fixed fee. Of course, it may be the case that the mediator outsources the actual divorce paperwork to a local solicitor but if the mediator and solicitor are working so closely together that they are advertising as one service then is there really going to be any system of effective checks and balances built into this process?
This issue of lack of checks and balances really starts to ring alarm bells when the divorce and mediation package includes the obtaining of a Consent Order from the court that creates a legally binding agreement about all the financial aspects of the marriage. Even as a mediator who is dedicated towards helping the parties to reduce the costs of the divorce process, I find it troubling that any mediator could openly advertise this sort of service. As with the divorce issue above, this opens up the possibility that a mediator could start to encourage the parties to sign legally binding documents during the mediation process, ranging from the transfer of ownership in the former family home to documents relating to pension provision and future income, and if there is any element of fixed fee involved in the process then the mediator may again have an incentive to take these sort of steps. As a qualified solicitor, it is difficult to state how uncomfortable that I feel about the potential for this sort of activity to take place and, once again, any attempt to circumvent the need for independent legal advice by using a preferred legal supplier to prepare the legal documents does not instil confidence in me. Add in the fact that any preferred legal supplier is themselves likely to be on a fixed fee themselves then where is their incentive to ensure that they are properly considering the contents of the documents and to then advice the parties accordingly?
Furthermore, if there is an appointed solicitor involved in this process then which party are they acting for? It is certainly not possible for a solicitor to properly act for both parties in a dispute without a huge risk of a conflict of interest so are they acting for just one party or are they effectively acting for the mediator? This opens up more questions than answers and anyone considering this sort of mediation and divorce service needs to ask them and then ensure that they are comfortable with the answers given.
Add in the fact that, as a mediator who regularly deals with complex financial cases, I do not believe for a moment that many, if any, of the mediation packages that I have seen advertised could possibly involve the preparation of proper financial summaries and the collection of full financial disclosure from both parties, thus making it impossible for informed decisions to be made by the parties, and you can hopefully start to understand why I would strongly suggest that you think very carefully before being tempted into going for the seemingly cheap and easy option of selecting a fixed fee package, especially one that also includes the divorce process and the preparation of a Consent Order.
Thank you for taking the time to read this post and I look forward to reading your comments.
Euan Davidson
Family mediator
Godalming Family Mediation
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I’m sure there’s only a cigarette paper between us Euan because I understand all of your concerns.
On the other hand, as a former solicitor, I think mediation services are digging ever bigger holes for themselves by telling their potential clients what they cannot do.
There is nothing in the FMC code of practice or anywhere else that I have seen that prohibits mediators drafting consent orders. If our legal system wasn’t so backwards in using clear English, our summaries at the end of our MoUs could easily be the wording for clients to adopt as consent orders if they wanted to. Why should anyone insist to adults that they MUST get something drafted by two lawyers instead of the one person who has helped them.
In Canada, mediators draft orders. The only reason mediators do not draft orders in England is political. They sold mediation to lawyers on the basis that they would return the clients to them at the end to do give advice and to draft the paperwork. This set up a quid pro quo arrangement. Now lawyers are less likely to refer, why should we be giving them work we can do? As a former lawyer, I’m perfectly capable of drafting a draft order. This is not the same as creating a legally binding agreement and one doesn’t automatically lead to the other.
We also tell clients we can’t use the term agreement. Why ever not? Because lawyers own the term apparently. Rot. People understand the difference between an agreement, and a legally binding one. If they don’t then it can be explained to them. Our avoidance of the word in mediation sessions is another handicap we give ourselves and says more about our subservience to the legal system than I feel comfortable with.
Fixed pricing? Well, I know you can fix a price for most people providing you have carried out a thorough assessment of their case through front loading – perhaps with a financial mediator and mediator with a therapeutic background helping. You’ll win some and you’ll lose some, financially speaking, but it is possible. What is more difficult, I would say, is negotiating the price with your clients most of whom like to think of themselves as the “£1000” couple because, you are right, fixed price doesn’t equal low price. It should equal value though.
And family lawyers can act for both parties, though many will be surprised to hear this. as you rightly point out, they cannot where there is a conflict. Where would the conflict be in turning a mediator’s English into legal English? I’m not sure there is one. It’s a debate I’d love to have, just as I’d like to know what “advice” lawyers are really giving that’s so valuable. Most advice is actually information. Lawyers rarely advise, though they might give a very guarded opinion about what a judges opinion might be if asked to decide.
Mediation is stuck in a time warp. Mediators must start making their services more client-focused otherwise someone else will come along and do it instead.
I hope this comment signs me up to your blog as I’d like to follow.
Hi, Stephen. Thank you very much for your post and sorry for only just spotting that it had found its way into the spam folder!
You raise some very interesting points about the drafting of consent orders and it is really helpful to hear your thoughts about how mediators are actively involved in the drafting of consent orders in other countries including Canada. I guess that it all really comes down to ensuring that we as mediators have the skills and experience to draft these sorts of documents, which as you suggest we should do in any event if we are expected to draft Memorandums of Understanding. However, as long as we have instances where pensions are not even discussed or where it is clear that the mediation process has not been conducted to a high standard then I am reluctant to encourage a reduction in the checks and balances that currently exist in our albeit very arcane legal system unless a new system with sufficient checks and balances can be created.
As for the use of the word “agreement”, I hear you loud and clear, and like many other issues we face as mediators, including the one relating to “advice” versus “information” that you raise, I totally agree that we can find ourselves tying ourselves into knots in a way that is not helpful to clients or to the running of a clear and transparent process.
I am also with you all the way on your comments about fixed pricing and again for me it comes down to ensuring that whatever is being offered is fit for purpose as there is a real danger that there will be a race to the bottom that will discourage the time, space and professionalism that all but the most straightforward family mediation cases require.
Personally, I think that we are slowly coming out of the time warp and I am hopeful that as a profession we will be able to take the steps necessary to ensure that new mediation models both promote the use of mediation and protect both parties’ interests properly. I am currently really encouraged both by the increase in mediation enquiries that I am experiencing and by the overall raising of awareness about mediation that I see happening around me, including your helpful post and all the excellent social media campaigning that you are involved in, so long may this continue for everyone involved, especially our clients.
With reference to following this blog, perhaps the best way to do this at the moment is to follow me on Twitter as I always post links to the new blog posts on there: @mediator_family
Thank you again for your comments.
Euan