We can work it out

If a court is not always the best forum for family matters, other ways of resolving disputes have yet to really find their footing. Among them is mediation for separating or divorcing couples, which has been available for over 30 years.

Henry Brown, who pioneered ‘all issues’ family mediation in 1985 in the UK, tells the Gazette: ‘Self-evidently, resolving family and matrimonial issues by agreement rather than going through a contested trial and hearing will always be beneficial for a couple or for any children they may have.’

Brown says the benefits include potentially ‘considerable’ cost savings, avoiding the delay and ‘huge stress’ of contested proceedings, and the ‘mutual recriminations so often inherent in litigation’. 

Since the 1990s mediation has been promoted by successive governments as a preferred out-of-court method to fix disputes over children and finances. So why has the public not embraced it?

One reason is that the state funding that could have helped to establish family mediation has been removed. A further charge – that not all lawyers are keen on mediation as they see it as cannibalising existing business – is difficult to prove. There is also a lack of awareness about mediation. Rigid approaches do not help either. Mediation does not have a monopoly on family disputes resolution. There are other options.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 dealt mediation practitioners a big blow. LASPO’s stated intention was to divert divorcing and separating couples away from the courts and into mediation, but it had the opposite effect. Although legal aid is still available for mediation in private family law matters, LASPO removed it for early legal advice for most cases. Without going to a solicitor first, couples are unaware that mediation is an alternative to the court.

Caroline Bowden, a consultant at Anthony Gold who specialises in family mediation, says: ‘The idea behind LASPO was that you would not need solicitors because mediators would sort it all out, which was always ridiculous.’

Bowden, who is a member of the Law Society’s Family Law Committee, adds: ‘People… have heard that legal aid has been abolished, but they haven’t heard that it is still there for mediation.’

Post-LASPO, there has also been a ‘sharp decline’ in the number of financial mediations, particularly in London and the south-east. LASPO introduced a new capital means test, which means that couples who are disputing sizeable capital assets such as the family home are not eligible for legal aid for mediation. ‘Because of the property prices in London and the south-east many people who might otherwise be eligible on income grounds are going to be excluded,’ Bowden observes. Conversely, since LASPO her practice has seen an increase in privately funded financial mediations.   

According to the Family Mediation Council (FMC), which regulates mediators and mediation service providers, mediators have reacted by ‘building up’ privately paying clients. Of the estimated 37,000 mediations conducted by registered mediators each year, only 17% are now funded by legal aid. At the end of 2018, there were 1,100 FMC-registered mediators, 68% of whom were accredited with the rest working towards accreditation.   

Russell-Cooke partner James Carroll is an accredited mediator and collaborative lawyer as well as a family law solicitor. The mediations he conducts are all privately funded. ‘In the vast majority of cases the parties have legal representation, so my experience is completely the opposite to the general trend,’ he says. ‘My [mediation practice] is continuously increasing, the reason being that all of my mediations are solicitors’ referrals.’

Only 44% of the general public has heard of mediation and ‘the great majority’ are doing it following a solicitor referral, an independent study by the universities of Exeter and Kent (Mapping Paths to Family Justice) has found.

‘If you are taking away that solicitor route, which happened with LASPO but hasn’t happened in my practice, you are taking out the referral sources,’ Carroll says. On average, he receives two mediation enquiries a week, all of which are solicitors’ referrals.

Once the public were effectively stopped from getting free legal advice from solicitors, mediation, whether legally aided or not, dropped off significantly

David Emmerson, Resolution

The increase in privately funded mediations has not offset the declining trend overall. The loss of the referral route from solicitors to mediators that legal aid used to provide has had a knock-on effect on the whole sector, according to David Emmerson, chair of Resolution’s dispute resolution committee. ‘Once the public were effectively stopped from getting free legal advice from solicitors, mediation, whether legally aided or not, dropped off significantly,’ he says.

So how to get the public to think about family mediation? ‘We need to target the 20-25% who go to court but should be able to resolve matters without court intervention,’ recommended a report that was published in June as part of a consultation on children cases in family courts.

But, in its review of the Children Arrangement Programme (CAP), the private law working group chaired by Mr Justice Cobb noted that: ‘There have already been multiple general public education campaigns promoting mediation and co-operative post-separation parenting. None of them have worked.’ Messaging about mediation has also found its way into storylines in popular culture, including Coronation Street and EastEnders.

Yet the fact remains that mediation is a ‘crisis purchase’ and therefore ‘a very hard message to get out there in the wider world, and keep that going’, says Bowden, who is also an FMC director.

People still confuse mediation with reconciliation, therapy or even meditation. ‘We need to normalise things,’ says Carroll and ‘get society to change its norms about how people resolve disputes.’  

Rachel Duke, a director and solicitor at Aletta Shaw Solicitors, has expertise in advising clients who mediate. Despite ‘a greater awareness among the public of mediation’s availability and potential benefits’, Duke has not seen ‘any significant increase in mediations’.

The biggest barrier, she says, is the ‘potential disconnect between the professionals involved’. On the one side you have the lawyers as ‘gatekeepers’, she says. ‘Clients pay to receive our advice. If the benefits of mediation are not fully promoted and another option, say, lawyer-led negotiations is favoured, it is almost inevitable that a client will favour that route.’

Duke, a member of Resolution and the Law Society’s Advanced Family Law Panel, points to ‘the pressure of fee-earning targets. It is perhaps understandable if lawyers fear that a client attending mediation is lost fee-earning revenue. However, I would disagree’.

That is because mediation ‘works best with supportive legal advice running in parallel with it’, she contends. Solicitors can advise on the memorandum of understanding (the document showing the parties have reached an agreement), and prepare the consent order, which is enforceable by the courts, and the financial disclosure.

‘Lawyers can have a hugely valuable input in supporting the process by managing party expectations and ensuring they are realistic,’ Duke says.

On the other side, mediators should be recommending that clients take legal advice but they ‘may fear that lawyers will come in and run roughshod over a hard-worked agreement, persuading a client that they might do better in court’, Duke adds.  

Of course, many solicitors are also mediators.

Despite accounting for about a third of Carroll’s total caseload, mediations represent only about 10% of fee income. ‘That is positive from a client perspective, of course, because it implies that mediation is conventionally cheaper,’ he says.

If solicitors make less money out of mediation than pursuing family disputes in the courts, what is in it for them? For Carroll it pays to be far-sighted: ‘You should have enough faith in your practice that helping people separate sensibly will be a driver of new work in its own right. It is self-perpetuating. The more constructive you are, the more you are trying to help your clients, in whatever form resolves matters, the more clients you will get. Conversely, if you are always assessing a client by your bottom dollar, you are going to generate a bad reputation and practice. So just don’t do it.’

Cost is touted as one of the main benefits of mediation. There is also a degree of certainty about future costs since mediation sessions are for a fixed length of time, proponents say. Between four and five sessions are typically needed to mediate both   children and financial matters.   

‘We are hearing that financial disputes are taking 18 months from start to finish and Children Act cases something like 15 months,’ Emmerson says. ‘[By contrast] you can get a collaborative case, a mediation case or an arbitration case dealt with in three months.’ Emmerson estimates that the savings for clients are very significant. Mediation typically amounts to 15-20% of the total costs of contested litigation.  

According to the latest FMC member survey, the lowest fee mediators charged was £62.50/hour and the highest £480/hour. The average was £194/hour including VAT.  

Lawyers can have a hugely valuable input in supporting the process by managing party expectations and ensuring they are realistic

Rachel Duke, Aletta Shaw Solicitors

Hybrid model

Another barrier to growth is practitioners’ lack of flexibility. Brown contends that family mediators and their representatives ‘may have become too rigidly committed to the “standard” model of mediation’. He believes that they must ‘become more flexible in their willingness to adopt other ways of working’.

The UK standard model of family mediation, also known as ‘sole’ mediation, involves parties meeting jointly with the mediator throughout the process. The parties’ lawyers, where appointed, have little or no role, other than drafting settlement documents, explains Brown, a dual-qualified South African attorney and solicitor.  

But other models are emerging, such as hybrid mediation. Brown was behind the development of this method, which brings the ‘caucus model’ used in civil and commercial mediation into family practice. ‘Mediation is most effective in the family context where… there is flexibility of process via the “hybrid” model,’ he says.

The parties’ lawyers are physically present when mediation takes place. The mediators also have separate confidential meetings with each party and their lawyers. This joint approach by lawyers and mediators ‘has real potential to address the current barriers to successful family mediation’, Duke asserts.  

‘The hybrid model is not just about separate confidential meetings and involving parties’ lawyers more effectively, but also about having a more flexible process generally,’ argues Brown.

Hybrid mediation has been endorsed by the Law Society and adopted by Resolution, yet it is still in the process of being incorporated into practice, Brown observes, pointing to the ideological and practical considerations that may be delaying its acceptance. ‘Perhaps the main concern is that many family mediators don’t consider it appropriate to maintain separate confidences as between the couple,’ he says.

The clients who choose the hybrid model either do so because they have come to mediation too late, or their solicitors suggest it at that stage. ‘It works well in the right circumstance and providing the solicitors who attend adopt the same settlement-rather-than-litigation mindset,’ says Bowden. Cost is also a factor as clients pay for two professionals.  

Cost is also a consideration in co-mediation, which is how family mediation started in the UK. ‘Our concept was that by having one mediator who was a family lawyer and another who had a background in working with couples, families or children (for example, a counsellor or social worker) we could provide a comprehensive mediation service addressing all issues,’ Brown says.  

After a three-year pilot scheme, called Solicitors in Mediation, Brown and a group of other practitioners founded the FMA in 1988, with co-mediation as ‘the standard way of working’. Sole mediation was subsequently introduced as an alternative.

Parties have the benefit of professionals from ‘different but relevant backgrounds’ but the cost of paying two mediators tends to be higher than paying for one, Brown says.

Philippa Johnson, formerly a family law barrister, only practises co-mediation with her colleague Sheila Turner, an accredited mediator, counsellor and psychotherapist. ‘Most FMA members do not mediate in that way, but that was the original gold standard,’ she says. ‘If co-mediation is successful, it is considerably cheaper than going to court.’

Johnson and Turner charge £200/hour per client (or £400 for a couple). Clients will need, on average, up to six two-hour sessions for children and finance arrangements – less if it is just one or the other. ‘Most couples we work with pay at least £400 an hour for their solicitor,’ she says.

Johnson’s approach incorporates elements of the hybrid model, in that she will also see clients separately during the mediation process. ‘What I try to do with every client is to find a way of mediating that is creatively designed to make that particular couple have the most useful conversation that they personally can have,’ she says.

In this respect Johnson is heeding Brown’s advice that ‘the mediation profession needs to adapt its practice as is necessary to be able to provide what is wanted and needed’.

There is also more use of child-inclusive mediation (CIM). Since September, mediators are required to attend a ‘CIM awareness and understanding day’ before submitting their portfolio to the FMC for accreditation. The mediator meets the child separately from their parents and feeds back to the parents. Johnson, who is trained in CIM, says: ‘It is a way of getting the child’s voice into the parental conversation at a fairly early stage.’

Expressing a ‘minority’ view, Bowden says she is ‘wary’ of this practice, and the potential ‘manipulation by the parents behind the scene’.

Success?

So how successful is mediation? With the fall in publicly funded arrangements, this question is difficult to answer, argues Johnson. Much of the evidence is questionable as it is mostly gathered from family mediators, she explains.  

The latest FMC member survey shows that 70% of mediations ‘lead to some form of successful outcome’.

‘It is unusual for mediation sessions to finish without people having got something important from it,’ says Johnson. ‘It might only be the short-term arrangements until they go to court… but [the parties] have a much clearer idea of what they need to do, what they need to concentrate on and what is actually all right.’

Carroll says that only about a third of his clients go to court after trying mediation. Even when they only reach partial outcomes through mediation they do not necessarily end up going to court. ‘Sometimes people just live with the fact that they are not on the same page about something,’ he says.   

Emmerson, who is a mediator and collaborative lawyer as well as a district judge, says that ‘mediation is undoubtedly a way of unclogging the court system’.

The FMC estimates that embedding family mediation further into the family justice process and restoring legally aided mediations to pre-LASPO levels would relieve the courts of about 4,400 cases.

Mediation schism   

Resolution, which represents 6,500 family lawyers and other professionals, recommends that mediation information and assessment meeting (MIAMs) be replaced by advice and information meetings (AIMs) to make clear that they are not solely focused on mediation. This will ensure that people receive ‘a full explanation of all the dispute resolution options and their suitability and affordability’, it said in its response to the public and private law consultation on children cases in the family court. Launched by president of the Family Division Sir Andrew McFarlane, the three-month consultation closed on 30 September.    

‘Mediation is an important and successful dispute resolution process in suitable cases,’ Resolution says. ‘But the collaborative process, roundtable negotiations, arbitration (both the children and money schemes) and private FDRs [financial dispute resolution] may be more suitable or alternative options in some cases.’

Resolution further argued that it is ‘timely to reconsider the need for a mediator to be accredited to conduct a MIAM (which is of course not a mediation)’.

The proposal that MIAMs (or AIMs) will no longer be the exclusive preserve of mediators is controversial. Opponents argue MIAMs are not mediation-selling meetings and mediators already have a legal duty to explore other routes to resolution.

A practitioner who prefers to remain anonymous fears that acting on Resolution’s suggestion may result in ‘a complete schism within the mediation community’.

Emmerson does not agree. ‘We would be seeking for a whole range of family law professionals to be able to achieve the accreditation of conducting AIMs,’ he says. ‘There is no reason why the FMC couldn’t still retain control of authorising, but there is also no reason why organisations such as the Law Society and Resolution couldn’t passport appropriate people through.’

For example, an accredited collaborative lawyer should be able to conduct an AIM. ‘It’s just giving the public more choice and options,’ Emmerson says. ‘Mediation will still remain the most popular and easiest dispute resolution that people will go for.’

In its election manifesto the Law Society called on the government to reinstate legal aid for early advice from a solicitor in housing and family law. ‘We have long campaigned for the reintroduction of legal aid for early advice,’ president Simon Davis told the Gazette. ‘Early advice ensures separating couples are well informed about their options and helps nip legal issues in the bud before they escalate.

‘Measures encouraging dispute resolution outside the courts are welcome and will always be most effective alongside expert advice from a family law solicitor,’ Davis adds.

In a bid to support self-represented parties, in November the Law Society and Resolution issued new guidance for mediators, including non-lawyers, on drafting consent and other standard orders into existing mediation documents. Bowden says this ‘could be a game-changer in helping clients ensure their financial agreements do result in a fair and legally binding resolution’.

Meanwhile, the CAP review report has recommended ‘revitalising and strengthening’ the MIAM to ‘make it a more effective activity and thereby encourage all forms of NCDR [non-court dispute resolution] in the right case.’

‘MIAMs are not widely seen by would-be applicants, and some legal professionals, as providing the valuable opportunity to explore out-of-court dispute resolution, but [rather] as an inconvenient obstacle to bypass to reach the court door,’ according to the private law working group (members of which include representatives from Cafcass, the Legal Aid Agency, Ministry of Justice and the mediation profession).

The authors further argue that ‘radical reform of the way society deals with children disputes’ would only be effective if ‘supported by a public education campaign; cultural change would be necessary in order to deliver it’.

Shifting people’s mindset from ‘“I am getting divorced, I need a lawyer and a judge to tell me what the answer is” to “I need to find a way to work together with other people that will mean we have a better relationship going forward”’ is a daunting task, according to Johnson.

The MoJ’s impulse is to ‘save court time and money… but if you attempt to make a big shift in public awareness without putting any money into that, how successful is it likely to be?’ Johnson asks.

Marialuisa Taddia is a freelance journalist