Mediation is no panacea in family law, but clients must be properly advised on dispute resolution.

I agree with Marilyn Stowe that there are no ‘magic pills’ in dispute resolution, particularly when it is a family dispute. But I wish to take issue with her in important respects.

Marilyn’s argument seems to run as follows: legal aid-funded mediation numbers have fallen dramatically because mediation only works for a narrow selection of cases; it is most likely to work if the mediator is an experienced family lawyer, because mediation requires legal expertise; and, in any event, most clients are better served by having their own solicitor.

The number of couples helped through publicly funded family mediation has indeed fallen. However, there is no causal link between the decline in the use of mediation and the skills of mediators. The trend has arisen directly from the Legal Aid, Sentencing and Punishment of Offenders Act and the loss of Funding Code referrals from solicitors to Legal Aid Authority-contracted mediators by legal aid solicitors.

This has been described as a ‘policy car crash’ by a number of Ministry of Justice representatives. It works like this:

  • Freed from the diktat of their former paymaster – the Legal Services Commission – solicitors must nevertheless still advise clients of all appropriate methods of dispute resolution, including mediation, otherwise they are failing to comply with the Law Society’s Family Law Protocol.
  • But: clients eligible for legal aid have got the message that there is no longer any legal aid for divorce-related matters with solicitors; these clients are no longer approaching solicitors about such matters.  
  • Because such legal aid clients are not approaching solicitors, there is no opportunity for solicitors to signpost them to LAA-contracted mediators; and
  • The government is taking no effective action to inform the public about publicly funded family mediation.

The result is that many experienced family mediators are now twiddling their thumbs. This is the case whether the mediators are legally qualified or otherwise. There is no compelling evidence that lawyer mediators are better than non-lawyer mediators or vice versa. Clients need legal advice from a lawyer and mediation with a mediator.  

So what is the situation for privately funded couples?

There appear to be two main strands to Marilyn Stowe’s argument in favour of using a solicitor.

First, clients are too emotional for mediation to be appropriate. But these are just the cases where mediation can offer most. Mediation allows clients to deal together with the emotional component of their relationship breakdown. In the case of parents who need to work together as separated co-parents, the mediation room is an excellent practice ground for this life skill.  

Second, she argues that using a solicitor means ‘ensuring the law is invoked and applied correctly and fairly’ while also providing a buffer between the judge and the client. A couple who arrive at court following successful mediation have much less need of this, since they will have arrived at their own agreed terms for a consent order.

I have recommended every single one of the dozens of couples I have seen in mediation to obtain legal advice at some stage in the process. Solicitors are ideally placed to provide proper advice on financial settlement terms and also on children matters, but they all too often provide an unnecessarily expensive, cumbersome and protracted process for bringing a relationship to an end.  

Perhaps we need a wider debate about when mediation is suitable?  

Clients need to be signposted towards well-informed, objective and professional advice to enable them to choose the most appropriate form of dispute resolution. This is what ought to happen in a well-delivered mediation information and assessment meeting.

Sue Nelson is a solicitor and family mediator