What’s holding back family mediation?

The Gazette recently reported that referrals to family mediation had plummeted following changes to the funding of private family law matters from April this year. The lesson is clear: without the lawyer as gatekeeper, clients simply don’t find their way to a mediator.

While the Ministry of Justice (MoJ) will doubtless persist in promoting the false dichotomy of mediation versus litigation, any form of dispute resolution should surely be judged on whether or not it meets the perceived needs of separating couples who are in conflict.

This is not to say that I’m sceptical about the ability of family mediation to resolve a client’s dispute. I know from professional practice just how successful mediation can be. Meanwhile, data from the MoJ shows that when separating partners agree to mediate, over two-thirds go on to reach agreement.

It actually makes commercial sense for me too. As a lawyer supporting mediation, I can easily fix a meaningful fee for legal advice and drafting. Since the mediator leads the process and overseas the financial disclosure, my fixed fee typically consists of two meetings, telephone/email support and some drafting. It means that the client pays for my skills as a lawyer.

In doing so, I bring the cost of dispute resolution firmly into the realm of accessibility for private clients earning an average salary. This is central to my department’s business development strategy.

Firstly, a fixed legal fee for a full service meets client need. Clients increasingly want to know what it’s all going to cost. Secondly, by becoming a destination for more affordable services, I can boost departmental revenues since my team can open more files, spending less time on each one relative to lawyer-led negotiations and most certainly litigation.

So there is a business case for your consideration. But the perceptive amongst you will spot a flaw, and a major one at that. Namely, just what percentage of private clients actually end up mediating after a referral is made? In the absence of hard data the answer is, at least anecdotally, nowhere near enough.

As a referring lawyer, I have no reliable means of constructively influencing the decision-making of my client’s ex-partner whom we shall call Party B. In fact, any suggestion I make could be counterproductive given Party B’s understandable reflex to discount any suggestion put forward by their former partner’s lawyer!

This is what every mediator is up against when picking up the phone to an unsuspecting Party B. In addition, the mediator cannot offer Party B any advice or overtly empathise with their point of view. Correspondingly, Party B’s incentive to agree to, and pay for a mediation information assessment meeting (MIAM) is weak.

Is it any wonder a huge number of referrals to mediation simply rebound? As such, can lawyers really be blamed for thinking mediation just doesn’t sell when it comes to private clients in conflict?

So is this the death knell for family mediation? Well, as previously stated, the data is not encouraging; and it is extremely doubtful to my mind that the MoJ’s plans to make MIAMs compulsory for applicants (Party As) pursuing court action will swell the number of mediations. Crucially, respondents (Party Bs) will be under no obligation to attend.

It is therefore with Party B in mind that my firm, along with almost 40 other law firms and mediation services, have come together (as lawyersupportedmediation.com) to try and correct an enduring market failure.

The answer? The introduction of an incentivised go-between connecting all participants, whose role it is to engage Party B after Party A has signalled their willingness to mediate. So in place of an unsolicited invitation from a mediator to pay up to £100 for a MIAM, Party B is offered a free consultation with a local family lawyer offering means-tested fixed fees in support of mediation.

This simple innovation tells me that we don’t need another family lawyer to train as a mediator. At least not yet. What referring lawyers do need are more creative ways to extend the reach of dispute resolution because right now I’m not sure mediation really appeals to the people that matter.

Rachel Duke is head of family at Ronald Fletcher Baker LLP, London