By Euan Davidson – please click for more information about the author
1st July 2014
Is Family Mediation a threat to Solicitors?
As family mediation continues its journey towards becoming a mainstream way to resolve family issues, with the recent law changes that make it compulsory to consider mediation before court action clearly speeding up this journey, it seems like a very apt moment to consider whether the increased used of mediation is a threat to family solicitors who have until now been the gatekeepers for the vast majority of family law disputes.
Despite the occasional reference to this issue in the media and on social media platforms including twitter (follow me here), it appears that most mediators and solicitors are reluctant to discuss this issue. The official line appears to one that everyone should work together in the clients’ (and their children’s) best interests and I am in full agreement with this aim but very few people seem to be prepared to point out that in order to achieve this aim there needs to be a sharp move away from litigation and towards negotiation.
Whether this negotiation is best undertaken around the kitchen table, in a mediation room, as part of the collaborative law process (when both parties sit together with their solicitors but without a mediator present) or via some other form of arbitration is inevitably going to depend both upon the individual circumstances of the case and upon the perception of the person who is being asked this question.
As a mediator, I am clear that the vast majority of cases can and should be resolved via mediation, albeit with simple issues being approached around the kitchen table if possible, and with other methods of arbitration only being considered if mediation is not successful or appropriate and with litigation being the last resort.
No doubt many collaborative lawyers and arbitrators will take a different stance on what process should be tried first but the point is that all of these approaches are generally far more appropriate than the traditional adversarial approaches that inevitably lead to far greater costs (financially and emotionally) and that are likely to make the divisions between the parties even greater.
From my perspective, under the proviso that there will inevitably be a small number of cases when adversarial approaches are required, anyone who disagrees with the logic of starting with these alternative methods of dispute resolution is demonstrating that they are not genuinely putting the clients’ best interests first so if the common narrative is that everyone should work in their own client’s best interests this really does leave open the question of why it is that mediation referrals are not being made at the beginning of the legal advice process as a default step. Could it be that making a mediation referral risks either losing a significant proportion of the potential legal fees that a solicitor can expect to receive or even losing all of the legal fees if the client decides that mediation can be used instead of seeking any legal advice at all.
Whilst it is unlikely that many cases will lead to the £1.6million legal fess that had already been accrued earlier this year in the Miss Malaysia case (https://www.telegraph.co.uk/news/uknews/law-and-order/10710385/Judge-condemns-former-Miss-Malaysias-divorce-bill.html), it is not unusual for divorces and other family law cases to reach bills of £10,000 or even £100,000 per person, especially in the Surrey and London area. Given this, can we really expect family lawyers to routinely suggest to all their clients during the initial consultation that they should consider mediation, where the mediation costs might be closer to £1,0o0 to £2,000 per person and with the solicitor then likely to receive a similar amount in legal fees if the client continues to seek legal advice in parallel to mediation?
Fortunately, there are some solicitors who are prepared to take this step, perhaps because they feel that this will lead to more referrals from happy clients in the future, therefore basing their business model on earning smaller amounts from a larger number of clients rather than earning large amounts from just a few clients, or perhaps purely out of a deep-held belief in the need to act in their client’s best interests even if this is to the solicitor’s own detriment.
However, given that relatively few clients seem to be being signposted to mediation early in the advice process, with the new laws simply making it a requirement to consider this prior to court action (by which time it may well be too late to mediate effectively and by which time the legal bills will have probably already surpassed even the most expensive mediation process), it would appear that it is currently only the minority of solicitors who are prepared to take this approach.
I am in no doubt that the reason for this reluctance to routinely refer to mediation is that family mediation poses a threat to the livelihood of many family solicitors. No number of polite lunches and networking events, that lead to reassurances that everyone is committed to promoting mediation, can alter this belief, and in order to develop a system that works for all parties we need to grasp this nettle and look for solutions whilst grasping it rather than pretending that this is not the case.
Mediators need to be aware that if a solicitor has made a mediation referral early on in the legal process that this is a huge leap of faith. We should respect the fact that the solicitor has chosen this route and do whatever we can to keep the solicitor updated with any significant progress that has been made during the mediation process and encourage the parties to return to their solicitors when legal advice would be helpful and/or when a legally binding document would seem to be appropriate. We should also suggest these forward-thinking solicitors as possible sources of legal advice for unrepresented parties during the mediation process – I often mediate for clients who do not yet have legal representatives and I am therefore always looking to work together with solicitors who are supportive of the mediation process.
It is my hope that by working together in this way, we will all be able to play a part in transforming the family law system into one in which mediators are no longer seen as a threat to solicitors, and vice versa, and where the end result is that the most cost-effective and proportionate but robust solutions are found to the problems that our clients are facing.
Thank you for taking the time to read this post. As a non-practising solicitor who is now a full-time mediator, I hope that anyone who has read this far can see that this post is designed to encourage greater trust and co-operation between the professionals even though at first glance it may appear to be putting a wedge between them! In my experience, it is generally far better to open the problem box and look for a solution rather than pretend that the problem does not exist, and countless hours mediating has confirmed this belief on many more occasions than I care to remember. I look forward to reading your comments.
Godalming Family Mediation