Ready for take off
Date: 08 January 2010
Authors: Geraldine Morris
Issue: Vol 160, Issue 7399
Categories: Features, Family, Mediation
As we come to the end of the current decade it is notable that the options for resolving issues on relationship breakdown have significantly widened. In the nineties the majority of family lawyers only had two methods of dispute resolution available to them—negotiation and court proceedings.
Alternative dispute resolution (ADR) has entered the mainstream to the extent that there is now discussion as to whether it should be called “alternative” at all. But is the original form of ADR—mediation—being eroded by the newer form of collaborative law?
A relative newcomer to the ADR arena, collaborative law was given a significant boost recently when the Legal Services Board confirmed that it would be incorporated into the family specification with effect from October 2010.
Mediation has been compulsory for clients seeking public funding for some time but may not always be appropriate because of, for example, domestic violence or because the non-publically funded party won’t attend mediation.
Mediation myths
Mediation has failed to take off to the extent anticipated in the 1990s. While family lawyers are training as collaborative lawyers in droves, the numbers undergoing mediation training has shrunk to a trickle. Family lawyers may hesitate to refer a client to mediation for one or more of the following (often erroneous) reasons:
Reconciliation—mediation is sometimes confused with reconciliation services. In fact a mediator is not seeking to reconcile the parties but instead resolve the issues arising from the breakdown of the relationship. The possibility of reconciliation is no more likely to enter into mediation discussions than in traditional forms of dispute resolution or in collaborative law.
Loss of control—a referral to mediation means a referral to another lawyer outside of the original lawyer’s firm. This goes against lawyers’ instincts. Collaborative law on the other hand means keeping control of the process (and the client).
But this need not necessarily be an issue—a good mediator will keep in touch with the parties’ lawyers and while the mediator may well be based at a “rival” firm, having seen both parties together in the mediation process, the mediator can no more “poach” a client than the other party’s solicitor could.
Costs—mediation sessions usually last for an hour and a half. There is also preparation and post meeting work to undertake. The mediation work may be intense, with regular sessions over a fairly limited period of time. By contrast traditional methods of dispute resolution may be more drawn out.
This approach can result in fairly hefty costs in a short timescale. But in contrast to the costs of a fully contested case the overall costs will be significantly smaller.
The costs for the referring solicitor may be smaller too, but with the end result of a satisfied client who is more likely to refer future clients to their open minded, creative thinking solicitor.
The business of family law
It seems that family law has suffered less in the current economic climate compared to other practice areas. However, while the volume of clients may not have diminished, the client’s financial resources may well have. Mediation clearly has inherent benefits but also, looking at it from a family lawyer’s business perspective, it makes financial sense.
Not all or nothing
Of course, mediation isn’t suitable in all scenarios —there may be domestic violence, a serious imbalance of power or during the course of mediation the mediator may identify that one or both of the parties isn’t really engaging with the process and just be using the sessions as an opportunity to air grievances. In those scenarios collaborative law may be the better option. Overall, what clients are looking for now, much more so than they were 10 or 15 years ago, is a lawyer who looks for solutions, however they may be reached.
Geraldine Morris is a solicitor and the technical editor of Butterworths Family Law Service
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