Family lawyers have successfully pioneered the concept of collaborative law. But would this form of mediation work as effectively in the civil courts? Jacky Lewis investigates

Civil litigators could learn a thing or two from the way things are done in family law, according to the new president of the Association of District Judges. Writing in the Gazette, Judge Terence John suggested that the family law system’s approach to alternative dispute resolution (ADR) could make a real difference in the civil sphere (see [2006] Gazette, 21 April, 12).

Conversely, ADR still appears slow to get off the ground, despite the Court of Appeal’s warnings that refusal to mediate is a ‘high-risk strategy’ which may lead to uncomfortable costs consequences, and recent changes to the Civil Procedure Rules reinforce this. So is this failure to take up ADR down to a lack of awareness, or are there deeper issues at play? And what can family lawyers teach their civil counterparts?


Judge John says: ‘The point we always make is that there are many forms of ADR; we really need to be flexible and imaginative. There is no “one size fits all”. ADR doesn’t just mean mediation – 70% of cases that come before us reach agreement or are set on the right road by rigorous court involvement and engagement with the parties.’


In his experience, most people in the family jurisdiction just want to settle – and compromise is possible on most issues. ‘We could perhaps import that thinking more specifically into the civil justice system. Some form of judicial neutral evaluation would offer the parties an opportunity to express their views, have these views heard, and hear views within a court-based setting. A specific process equivalent to that in the family jurisdiction would be novel in the civil courts.’


But lawyers and mediators and who are trying to bring mediation into the civil courts at ground level find the number of mediators on hand to be extremely low. In the US, a system of court-based mediators is successfully running in courts in several states, but the UK lags far behind. Judge John suggests courts need an ‘accessible facility available with minimum delay at the right moment’.


So what is new about the collaborative law approach, pioneered by family lawyers? In the collaborative model, lawyers and their clients undertake to be constructive, transparent and focused on solving the problem. If negotiations break down, clients must instruct new lawyers in different firms to progress their case in the traditional way. Ironically, this can be a key factor in keeping parties at the negotiating table, encouraging them to work out solutions to seemingly intractable problems.


Anthony Maton, a partner in the London office of UK firm McGrigors, and executive committee member of the London Solicitors Litigation Association, is a trained mediator and ‘a big fan and proponent of mediation’. He maintains that collaborative law in a commercial context could do well although, with the weight of documents in many such cases, it could prove expensive.


Lawyers can fear a drop in fees if they settle cases in a collaborative or mediated manner, but Mr Maton suggests that mediated settlements mean happier clients, who will ‘go on to recommend you and your firm to others’.


There are many different approaches to mediation. Mr Maton describes one US judge who went through his caseload and called in the lawyers in cases he thought should settle. He personally mediated the cases, and cleared 70% to 80% of that part of his docket.


Practitioners often maintain that they have ‘undertaken ADR’, but what they consider to be mediation may well mean achieving the best outcome for their clients by carving out creative and mutually acceptable solutions. At a recent property litigators’ conference, one commercial lawyer explained that his idea of mediation was to ‘keep the other side in a room until 2am and whichever side isn’t dropping, wins’.


Derek Sands, a partner at Manchester firm Rowlands and chairman of the Law Society’s ADR committee, says he has seen a marked change in the attitude of judges to ADR, although some remain stubbornly resistant. ‘The Department for Constitutional Affairs has to be congratulated for taking a strong lead in encouraging mediation awareness – government ministers have become involved and there are new protocols such as mediation at the forefront of litigation.’


The collaborative law model, he says, ‘is something we have had a discussion about and are continuing to discuss’. The committee is looking at the possibility of producing some standards for quality and training in collaborative law. ‘All models should be looked at. Collaborative law is still new and anyone involved should be properly trained and should be a lawyer.’


Colin Ettinger, a partner at national firm Irwin Mitchell and former president of the Association of Personal Injury Lawyers, contends that mediation has ‘limited use’ in the personal injury field. The majority of these cases are settled for £10,000 or less and it would be ‘disproportionate’ to involve mediators, he says. These cases usually are ‘settled amicably’, without the need for mediation.


Mr Ettinger works on larger cases, and mediation has not taken off in that field to any large extent. ‘It isn’t cost saving – it adds to the costs,’ he says. ‘Roundtable discussions usually do the trick’. Mr Ettinger recently worked on a case that settled in two hours; mediation would have taken ‘all day’, he says. But he has found mediation useful in cases where parties are reluctant to discuss matters, particularly where there is much at stake and the parties are a long way apart. It has worked well for him on the few occasions he has used it.


In a recent interview, the former Lord Chief Justice, Lord Woolf, said that ‘companies and their lawyers can find it difficult to justify backing out of a case once millions of pounds have been spent – it takes strength of mind for a lawyer to say “I’ve advised you on this route and you’ve spent £10 million on it, but you should abandon the case”’.


Often mediation does not seem to have been in anybody’s thoughts until late in the day. There is also, frequently, an assumption about cases that are not ‘suitable’ for mediation. Some cases have required thousands of documents, take years to resolve and may even collapse before reaching a judge’s ruling. In the Bank of Credit and Commerce International case against the Bank of England, Gordon Pollock QC took 86 days just to open his case, which was withdrawn months later.


James Pirrie, a partner at London firm Family Law in Partnership, is a firm believer in collaborative law. As the solicitor for Julia McFarlane in the recent ground-breaking House of Lords divorce judgment, he suggests that, had the collaborative model been available at the outset of the case in 2001, the whole progress of the matter might have been different.


‘The tragedy of litigation is that the family has less and less control over the issues, the agenda and the outcome… as one gets to the hearing in the House of Lords, the client is scrapping for somewhere to sit at the back with members of the public.’


As a former chairman of Resolution’s collaborative committee, Mr Pirrie considers that this model provides more informed choices for clients. Resolution has now merged its mediation and collaborative work within a single committee. ‘Traditional process is often about positions… too often, settlements happen because both sides are too weary to go on,’ he says. ‘Collaborative practice is about informed choice for both sides; conclusion is reached because a safe negotiation space is created and the lawyers help the clients to identify better options for resolution.’


He adds: ‘At some stage we know that the light bulb will go on for the civil litigators in the same way it went on for us. We are impatient for this to happen because we have seen how much better the outcome – as well as the process – can be.’


Mr Sands adds: ‘We need to educate lawyers, and the Law Society is trying to break down the barriers. But it is clear there is still a long way to go.’


Jacky Lewis is a freelance journalist