JOINT ADVICE, MEDIATION AND CONFLICTSConsiderable interest has recently been shown in the possibility of solicitors offering joint advice to divorcing clients, the provision of mediation by solicitors and the ways in which solicitors and mediators can work together.

The relevant Law Society rules in this area are:Solicitors are under a duty to act in their clients' best interests.

This becomes impossible when a conflict of interest exists between them.

Principle 15.01 of the Guide to the P rofessional Conduct of Solicitors states that 'a solicitor or firm of solicitors should not accept instructions to act for two or more clients where there is a conflict or a significant risk of a conflict between the interests of those clients'.

In matrimonial cases acute conflicts of interest often arise, and this rule protects the public and the profession from allegations of impropriety.

The Society takes the view that joint advice should not therefore be given to a divorcing couple.

Even in cases where no conflict of interest is immediately apparent, joint advice should still not be given because there will clearly be a significant risk that such a conflict will develop.

In the most apparently amicable of cases couples may have reached their own 'agreement' on the basis of misleading ideas about what the law states or on the basis of insufficient information about their financial situation etc.

When this becomes apparent a conflict of interest will, no doubt, emerge.Mediation is a process whereby the mediator(s) act as an impartial third party to assist couples to resolve all or some of the disputes arising on divorce.

Mediators may not give their clients advice.

Giving advice and providing a mediation service are different activities and are governed by different professional rules and should be distinguished.

Doing this will avoid the possibility of confusion on the part of clients.The rules governing mediation are found in chapter 22 of the Guide to the Professional Conduct of Solicitors.

These rules provide that:(a) solicitors can offer mediation as part of their practices or as a separate service;(b) solicitors providing mediation must inform the parties in writing and they must agree that the solicitor concerned will be independent, neutral and impartial and will not advise either party;(c) any solicitor offering a mediation service may not do so in relation to any person or couple to whom advice has previously been given.

Solicitors offering mediation may not act for either party or the couple in future;(d) solicitors providing mediation as a separate business should obtain indemnity cover;(e) solicitors providing mediation services should receive training and abide by a code of practice.Solicitors cannot enter into multi-disciplinary partnerships.

Any non-solicitor working within a firm cannot therefore be a partner in the firm.

Fee sharing is also prohibited unless the non-solicitor concerned is a bona fide employee of the firm (see r.7 of the Solicitors Practice Rules 1990).

Where a solicitor and a non-solicitor mediator offer a mediation service within their firm, arrangements must be made to ensure that the mediator is an employee of the firm or that, if not, no fee sharing takes place.

Care also needs to be taken to ensure that no client offered mediation by a solicitor's firm receives, will receive or has received legal advice from the firm and vice versa.Solicitors with queries should contact Professional Ethics, Ipsley Court, Berrington Close, Redditch, Worcestershire B98 0TD; DX 19114 Redditch; tel 0171 242 1222.DIVORCE LAW REFORMIt is highly likely that a Divorce Reform Bill will be announced in the Queen's speech on 15 November 1995.

This Bill will build on the proposals in the white paper 'Mediation and the ground for divorce', namely:(a) The introduction of true 'no fault' divorce.(b) Increased provision of divorce information.

This will be dealt with through mandatory attendance at public, group divorce information sessions.(c) Increased availability of mediation services.

Coup les will be expected to use mediation services to resolve their disputes.

Couples in receipt of legal aid will have to use mediation unless their solicitors can demonstrate that they come within government determined criteria.(d) Legally-aided clients using mediation will have restricted access to legal advice and no access to representation.

The Law Society intends, jointly with the Solicitors Family Law Association, to lobby Parliament on the likely adverse consequences of the reforms in an effort to influence the government's thinking.One way in which this lobbying can be made more powerful is to cite examples of clients' problems and the way in which their solicitor was able to help them.

This can be done through anonymous written examples in a format along the lines of 'Mrs S from Manchester...'.

Alternatively, managed access to the media can be arranged so that clients can give details of the problems experienced and the help received.

Family lawyers are invited to consider whether any of their current or former clients would feel able to consent to anonymous written case histories being prepared, setting out the problems they experienced and the help their solicitors gave them or to being interviewed face to face by the media.Solicitors with details of any case histories or clients who are prepared to be put in contact with the media are invited to contact Jane Leigh, secretary to the family law committee, 50 Chancery Lane, London WC2A 1SX; DX 56 London/Chancery Lane; tel 0171 320 5743, in the near future.The Law Society's retirement benefits scheme unit linked section: personal pension plan is 4057.9p at valuation on Friday 13 October 1995.