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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• Pacificweather

  The problem is not lack of mediation or lack of legal advice. The problem is the law and how it is interpreted by family injustice system. A strict enforcement of equal rights and responsibilities is all that is required. Courts do not do that at the moment and if they cannot do it they should step aside and let people sort it out for themselves. At present, marriage is a variable terms contract that that no one in his right mind would sign.

  Incidently, the Victorians had written marriage contracts. When did that practice end?

• CAOS Conflict Management

  Of course people need legal advice alongside mediation if it is a legal matter. But they don’t need it DURING mediation. How does this reduce legal costs and complexity? Now there’s not just a lawyer, there’s a mediator and a lawyer! And the lawyer is ‘legally trained’ and therefore comes at a ‘legally trained’ cost. The two worlds can exist in parallel, mediation is not trying to remove the legal process it is providing an alternative to it where it makes sense to do so. This seems to be arguing for an entanglement of the two which serves no-one ‘better’ and is counter to the whole point of increasing the use of mediation. Before yes, after to endorse the agreement made, yes, but during mediation, no. The lawyer does not need to be present…adults are able to come to their own decisions and the role of mediation is to support the creation of that that client led outcome.

• timberanddamp

  What planet are these people living on, the origin of this nightmare in divorce was the 1969 Divorce act, this act of lunacy brought about all of the present disasters and confusion and was designed to empower the feminists of the new womans lib fraternity, it did then, and does now, positivley descriminate against men, the up to date 1989 familly act destroyed any little rights that remained for men and gave the lawyers a completely un-regulated licence for fraud, all of the proceedings from this 1989 act were in effect ex-parte and were only presented in the female perspective, there is not one single family in this country that has not been impacted or affected by these scandolous laws, they have reached as far as the royal family and at every level down from them, the familly courts are the most bias and unreasonable system ever to sit in judgement in the history of this country and openly discriminate against the interests of the male and the fathers involved in the marriage,this became common knowledge to the fairer sex and was wholly capitalised on by the divorce solicitors to the detriment and destruction of any nuclear family unit that came into their radar, all of the steering commitees that advised on these acts were heavily weightet in favour of the divorce solicitors interests, this resulted in a 26 Billion pound industry jumping up from virtually nowhere, pre 1969 this divorce law was for the mainly privileged and well heeled who could afford this luxury, this law has resulted into the lunacy that we have inherited today, these acts should now be repealed with a return back to the original position, there has to be consideration by the courts to cause and effect, there must also be a return to the laws of breech of contract and what follows that deliberate breech from either party, when we are dependent every day of our life on law of contract, from buying a bag of groceries to purchasing a house, how can there be a law that as its central pivot advocates a no blame culture, this is absurd, there is blame in every dispute, the american system of CSA should be totally abandonded and closed down, where the courts should be allowed to determine the merits of each individual case, as took place prior to 1969, there should also be new legislation regarding the practice of referals and fee earning, which has resulted in a pay day every day for the large legal firms, this practice has destroyed the rights of challange to take place as the major law firms recieve substantial payments from the divorce solicitors through this refferal process, the damage that has taken place in the previous 40 years is incalcuable, this damage has been encouraged and supported at all levels by the legal profesion, there should be a special place in hell reserved for all who participated in this lunacy and of how the moral and family structure has been allowed to be so viciously and systematically eroded, its time to now reflect with the statistics to hand from all relevent govermental departments how much damage that these acts have brought about, how many suicides ? premature deaths imediate and remote family breakups, businesses destroyed, how much benefits have been supported by the taxpayers and so on, this situation has been ignored and supported without challenge for to long, lets see if this government will now seek a root and branch answer, mediation is not the domain of lawyers, it is not in their collective interests to mediate so they should never be allowed any role in this process, this in effect is giving the gunman the ammunition to fire at you, the credibillity of the legal profesion is lower than bankers and accountents, this mess is a direct result of the lawyers involvement since 1969, marriage is the most importent contract that anyone will enter into, the results of this contract will remain with both parties forever, this applies to the children and fiscal liabillities that follow, if a contract has no value then ultimatley that contract has no worth, therefore these lightweight solutions that are currently applied have not and do not work, the injustice now must stop and all considerations and consequences of a breakdown must be taken into account, not just the renumerations and benefits of the lawyers, refer to an article in the Sun newspaper last Tuesday by one of the worst protaganists and beneficaries of these practices a Muzz Benussi, headline Piranha, what a total hypocrite, the arrogence and self dillusion is both proof and testement to these divorce lawyers approach and intentions, the mendacity and projections of this dealer in human misery for financial gain disqualifies her as a member of any civilised society, it is also no conincidence that the small private divorce lawyers emerged directly after the 1989 family act when all of the major law firms abandoned, and closed down their family law departments in favour of the fee earning and referal process, as the major law firms were no longer responsible through this abdication of in house responsibillity for orbital and lateral research into how family proceedings impacted on other areas of law, such as law of equity, the major firms of lawyers became remote and were not going to kill the goose that kept laying the golden eggs, the propoganda and ideas through misinterpretation and misuse of the law has led to the culture we now have, the real world changes propoganda, and the law of the land should change bad and bigotted idealisam, and the injustice that comes away from that.