BOOK REVIEW: Lawyers and Mediators – the Brave New World of Services for Separating Families

In their latest collaboration, these longstanding commentators on family law and practice offer an acerbic stocktake of recent changes in public policy – before challenging lawyers and mediators alike to think afresh about the restrictions of their practising orthodoxies. 

The book opens with reflections on the ‘curious and continuing contrast’ between research and the government’s views on the value of the work of family solicitors, and the subordination of the role of lawyers. This is illustrated by ‘repeated but unsubstantiated negative policy messages’ about family lawyers, and information to the public presenting going to court as the only alternative to mediation, culminating in ‘desperate-looking’ attempts to promote mediation post-LASPO.

There follows a description of the marketisation of the legal profession, as a result both of government ideology and the pressures on the 98% of firms that are outside the top 200, which are competing for a third of the total income of all firms. Readers will recognise whether their own firms fall within the proffered types of ‘stable’, ‘challenged’ or ‘struggling’.

In a review of online divorce providers, the conclusion is clear – ‘disputes cost money, whichever route is taken’. The web can offer only ‘little more than low-cost document handling’ in non-contested matters; models such as the Dutch online ADR platform Rechtwijzer are not suitable for couples who cannot agree.

There follows a series of observations of family lawyers and mediators at work. It is these observations that lead to the probing of professional boundaries. The authors dispute ‘the idealised notion’ of autonomy in mediation, and ask whether the distinction between giving information (permitted) and providing advice (prohibited) in mediation is either realistic or desirable. Impartiality rather than neutrality is what is really required. The lack of an unequivocal professional duty upon mediators to give primacy to the welfare of the child is also questioned.

Family mediation had begun with a distinctive ideology and practitioner origins from outside legal practice. The boundaries are much less clear now, as lawyers and mediators are increasingly occupying the same space. Lawyer-mediators are the numerically larger group and, as more mediation centres close, the stable provider base. 

From those general considerations and their own observations, the authors question both the requirement on a mediator (even if legally qualified) to disclaim giving legal advice and to direct the parties to other lawyers; and the prohibition on a lawyer seeing both clients together where, in the words of the SRA Handbook, they have a ‘substantially common interest’. The expertise of both professions should be available in a single provider for clients who are one-time purchasers under considerable distress, in need of both support and advice.

Mark Paulson is head of family and social justice at the Law Society and a director of the Family Mediation Council