Both mediation and legal advice is needed by separating couples
Given the importance of encouraging dialogue between couples when it comes to resolving child arrangements and financial matters, family mediation is a very good thing and there’s certainly not enough of it .
The government is clearly in agreement. Earlier this week, it published its response to the Family Justice Review saying it would more than double the £10 million annual budget for publicly funded family mediation and set of up a dedicated information website for separating parents. A telephone helpline will follow in 2013.
It would be mandatory for separating parents seeking court action to resolve child arrangements to first meet a mediator, to see if an agreement might be suitable instead.
While the underlying sentiment is welcome, will these measures be enough to catapult family mediation into the public conscience at what is routinely a time of great stress for separating couples? I have my doubts.
The first reason is low public awareness. In the same way separating couples have unrealistic expectations about how a judge arrives at a court order, they understandably know little or nothing about family mediation until they’re sat in front of me. As long as we enter loving relationships without the need for an exit strategy, this is unlikely to change.
Secondly, all of us need to remind ourselves what people want at a time of divorce and separation. Simply put, people want legal advice and they want to hear it from a trusted source. This has hitherto been the preserve of the high street solicitor, who unlike information websites, telephone helpline staff and indeed mediators, exist at the community level to impart regulated legal advice and if necessary advocate on their client’s behalf.
But don’t go thinking – at least not yet – that I’m just another greedy lawyer scared of losing their livelihood to a growing army of newly trained mediators – many of which are lawyers themselves.
I’ve acted for countless clients stretching back two decades who could have benefited from attempting mediation with their separating partner. In truth most clients fall into this category, especially those with children. They are clearly the group for which a dialogue-driven approach may yield the greatest dividend: a joint agreement each party is willing to abide by.
So mediation most certainly has its place. It is after all a voluntary and confidential process led by a specially trained impartial guide who works with both members of the separating couple. As such, the mediator enjoys a huge advantage over my role as lawyer when it comes to encouraging dialogue and identifying issues.
Mediation is also far more affordable and according to figures compiled by the Legal Services Commission achieved a success rate of 70% in 2009/10.
There is a real opportunity here to mainstream family mediation in a way its founding UK lights visualised back in the 1980s and 90s. But it will only happen if the complementary strengths of lawyer and mediator are effectively integrated into a client-led dispute resolution service. People need both: a lawyer for expert legal advice, and an impartial mediator to provide breathing space for dialogue.
With this in mind, a small group of experienced family lawyers and family mediators last year set about devising a new approach to divorce and separation that puts dialogue centre stage. The result is lawyer-supported mediation and we believe it has potential to make mediation a far more compelling choice.
We’re confident because the approach offers both members of the separating couple access to a likeminded and growing network of senior lawyers and mediators who trust each other as professionals and have done their upmost to massage away typical sources of friction associated with conventional approaches to divorce.
For example, with lawyer supported mediation the two instructed lawyers are similarly experienced and charge the same pre-disclosed fixed fee tailored to the couple’s circumstances. So in place of an arms race to secure the best legal advice, there’s unprecedented transparency and equality of representation. Meanwhile the availability of fixed fees, which remain extremely rare in family law circles, effectively removes the anxiety of running up hefty legal bills for letters, phone calls and emails.
My role is to impart legal advice before, during and at the close of mediation. I also compile the legal paperwork required by the court to make a mediated agreement binding. Should the approach fail, I and my client retain a full suite of options going forwards.
So does all this make me a greedy lawyer? Fair enough. I couldn’t think of a better way of earning fees than commercialising lawyer-supported mediation.
Linda Jones is head of family at Brethertons LLP. For more information visit www.lawyersupportedmediation.org.uk
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