Thursday, November 19, 2009

Mediation is unattractive

I take exception to the suggestion in this article by Jane Robey (left), chief executive of National Family Mediation, in the Guardian's Comment is free column today, that solicitors discourage mediation in order to boost their fees. I cannot speak for the entire profession, and I'm sure there are some solicitors who do this, but I most certainly did not, and nor did most of the other solicitors with whom I had dealings. I always encouraged clients to go to mediation (although I had reservations - I had often found that the results of mediation were less than satisfactory) and, after advising them about how mediation worked, left the decision to them. My experience was that the majority of clients decided not to go to mediation, but that was entirely through their own choosing.

Despite my reservations, I agree that mediation can be very helpful in resolving family breakdown issues, but it is not a panacea - it is an additional tool, useful in appropriate cases, i.e. where the parties are willing to utilise it. In other words, my experience suggested that its lack of take-up is due to the unwillingness of parties to go to mediation, rather than the greed of their solicitors. Robey should consider why so many people find mediation unattractive, instead of speculating upon what solicitors may have told their clients.
Posted by John Bolch at 6:43 AM
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7 comments:

  1. "Too many children suffer in divorce courts: we need more mediation - The emotional strain of family breakdown will never be solved by lawyers alone"

    includes:

    "the divorce market is worth up to £4bn to the legal profession" which may explain the reluctance on the part of some lawyers to look at alternatives!

    I would say "Too many children suffer in divorce courts: we need more marriage preparation". But I realise I am ploughing a lonely furrow. Just a tiny fraction of £4bn would go a long way towards it.
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  2. Hi John
    I take it Ms Robeys argument will again be dealt with in the usual manor of conveniently adding it to your expanding mental list of those with an axe to grind against Family Law Solicitors.
    Jonathan
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  3. To be fair to Jane Robey, a report by the National Audit Office in March 2007 said much the same, and certainly substantiates her remark.

    It said that Legal Aid funded solicitors were not advising their clients of the availability of mediation. Mediation was only being used in 12.7% of cases. The chairman of the Commons Public Accounts Committee, Edward Leigh, said that lawyers were 'cashing in by keeping quiet' and urged a crackdown on fat-cat lawyers who were 'happy to jump straight into the court room, leaving the taxpayer to pick up the bill.'
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  4. In my area mediation costs as much as our hourly rate.

    I will recommend cases that are appropriate to mediation, i.e. willing parties and no domestic violence but this is not always taken up by the clients, as pointed out by John.

    We cannot force parties to mediate if they are not prepared to do so. It is quite often the case that one party may be willing but the other not. Again mediation will only work if you have two willing parties.

    And of course, there are the times where my client's have gone to mediation and agreed a settlement only to have the other party back track and change their minds, as mediated agreements are not legally binding.

    This has the net result of increasing costs and delaying matters further.

    If you have two parties grown up enough to communicate in a positive manner then mediation is the answer. Sadly however this is not always the case.
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  5. So Portia you basically agree with John. ;-)
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  6. Well yes, I would have to say that I do.

    What would you propose Anonymous??

    There is, of course, the human rights issue to consider also..right to a fair trial and all that.

    If mediation was forced I do not doubt for a moment that everyone would then start banging on about that one..

    ;-)
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  7. No one seems to be "banging on" about the current system which forces potentially vulnerable people into an adversarial system?
    To quote Nick maybe this has something to do with the fact "the divorce market is worth up to £4bn to the legal profession" which may explain the reluctance on the part of some lawyers to look at alternatives!

    ;-)
    ReplyDelete

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