Surrey Lawyer Magazine Mediation Law Change

It is really encouraging to see that the Surrey Lawyer Magazine has chosen to cover the recent family mediation law changes in a double-page story. I hope that this encourages many more solicitors to work together with mediators to promote clients’ best interests. Please see pages 18 to 19

NEW LAW CHANGES PUT FAMILY MEDIATION CENTRE STAGE

The crucial role that family mediation can play in divorce and separation cases has moved centre stage with the introduction of the Children and Families Act on 22^nd April 2014.  Under the new law, if anyone wants to make a court application relating to the vast majority of contested divorces or disputed children or finance cases, mediation will first need to be considered as an option.

Checks will now be made at every stage of the court process to ensure that this has happened, right the way through from when one party enquires about making a court application up to the initial hearings when the judges are expected to check that mediation has genuinely been explored whenever appropriate.

My hope is that this change will mean that we will finally start to reach the point where all the stakeholders in the family justice system, including the clients and their legal advisors, acknowledge that court should be the last resort for a small minority of cases, with mediation being the first resort for the vast majority of cases.

Clearly, for this to happen, individual mediators and the mediation bodies, including the Family Mediators Association and Resolution, in conjunction with the Family Mediation Council, need to ensure that the quality being provided is high and that the mediation process is robust and flexible in ways that suit each particular case.

It is also vital that we get away from the current position where, despite all the dialogue and networking that takes place between mediators and lawyers, there is still often a feeling that these professions are in competition with each other. We need to see an end to solicitors only referring clients to mediation as a last resort, whilst suggesting sometimes very tenuous reasons not to mediate to their clients, and equally we also need to see an end to mediators seeing solicitors as a place where clients will have their mediated agreements unravelled at great cost to clients and to the detriment of the mediation process.

I believe that there is a tremendous amount of scope for mediators and solicitors to work together, especially when there are complex financial or legal issues being discussed, and it is time for us to search out people from both professions, some of course who are working in both professions simultaneously, who are willing to work together in the best interests of the clients, with part of this requiring us to focus on helping the clients to reach lasting solutions in the most cost-effective way possible.

As a mediator, it is incredibly reassuring to know that my clients are receiving legal advice from solicitors who are supportive of the mediation process and who understand that part of their role is to ensure that their clients remain in the mediation process, with the communication channels therefore staying open, for as long as possible and who respect the need to avoid any unilateral legal action that would potentially undermine the mediation process. This then also gives me confidence that, when it is time for solicitors to draft the consent order or any other legal documents, this drafting process will be undertaken in line with what has been proposed by both clients during the mediation, on the basis that any foreseeable issues will have already been raised and resolved during the mediation process.

I also realise, as a non-practising family solicitor, that it is vital for solicitors to know that their clients will not be consumed by the mediation abyss and either never surface again or one day return with a mediation document that is poorly prepared, based on insufficient information (including the infamous failure to even discuss pensions) or legally flawed.

In order to make sure that these pitfalls are avoided, we need to identify mediators and solicitors who are prepared to respect each other’s roles and who will always openly discuss any potential challenges or barriers to the mediation and legal processes rather than seeing these as the chance to undermine the respective roles being played by mediators and solicitors.

I am hopeful that the recent law changes will mark a step change in the way that mediation is promoted and approached by everyone involved in the family justice system. This is not about forcing people into a room who do not want to be there – which could in some ways be seen as a very apt description of the court process – but about ensuring that people are able to make informed choices about how to approach their divorces and separations, including about the clear benefits that a properly conducted mediation process, in parallel with responsible and realistic legal advice, can offer many people.

At this early stage of implementation, it is unclear whether the family justice system will be quick to embrace both the spirit and the letter of the new law but I am hopeful that there are many reasons to be optimistic about the role that mediation will play in the coming months and years.

Euan Davidson is a trained family mediator and solicitor and runs Godalming Family Mediation. For more information about Euan please visit www.godalmingfamilymediation.co.uk or call 01483 339379