Monday, June 28, 2010

Neither mediation nor collaboration is a panacea

It seems that the proponents of mediation and collaborative law are very passionate about their subjects, but are they in danger of misleading the public as to just what mediation and collaboration can achieve? The enthusiasm that they show sometimes seems to me to give the impression that mediation and/or collaboration are panaceas that will resolve any divorce/separation dispute, completely replacing more 'traditional' ways of resolving those disputes. I don't know if it is just me who thinks that these things are over-sold, but if the general public were to get this impression, then I think we could have a problem.

I have said previously that I was sure that any collaborative lawyer would agree that collaboration was not a panacea, but now I'm not so certain. Some of the claims made for it and for mediation verge on the hyperbole. I'm not going to give any specific examples, as I don't want to single anyone out, but they certainly give me the impression that they are the answer to everyone's family law problems, or even that you would be foolish not to use them.

Why does it matter? After all, surely any attempt to resolve matters by agreement is a good idea? Well, yes, but only to a point. Many cases just aren't going to settle in mediation or collaboration. If people are duped into thinking that their case will settle when manifestly it won't, then they will suffer unnecessary delay, frustration and expense. Now, I'm sure that the best mediators and collaborative lawyers exercise some sort of vetting system at the outset, sifting out those cases that are not suitable, but I worry that the fervour of some (or just the need for a return on the investment in training) will blind them into accepting cases that are patently unsuitable.

Clearly, the public should be made aware of all of the possibilities for resolving their family disputes, but they should also be made aware of the limitations intrinsic in some of the alternatives. Sometimes, getting a matter before the court as quickly as possible really is the best option.

8 comments:

  1. I am a passionate proponent of mediation and collaborative law and do not understand why your article suggests oppobrium should be heaped on us.

    Borrowing your terminology, mediation/collaboration are clearly under-sold not over-sold by the legal profession since they are the chosen by the minority. They are not a panacea, but most who have been trained in their techniques understand the huge advantages their toolkits provide when dealing with relationship breakdowns and their related problems.

    They allow clients to retain control of their cases and generally provide better outcomes. Mediation does so at a much lower cost than any other process lawyers are involved in. Collaboration does so at the cost of traditionally run cases which settle at the FDR stage - but without the hostility and polarisation that court proceedings create.

    Ask most general family practitioners if they settle their financial cases and I reckon they will tell you they settle 95% of them. But many of these will come about after proceedings have been initiated, often at court when tensions are high, costs a worry and feelings of mutual loathing ingrained.

    Yes I do believe that more clients should be encouraged to explore mediation, collaboration, and co-operative law as alternatives to the traditional lawyer-lawyer negotiation process. In the first instance mediation can be explored. A 90 min session with a mediator is pretty cheap when you consider the mediator's rate will be shared by the couple in some proportion. If it doesn't work, the co-operative/round-table/collaboration options are still available as non-adversarial options.

    Your article suggests that mediation and collaboration are slow. I'd say that mediation tends to be quite brisk - 2-3 months start to finish for typical all issues family mediation. Collaboration tend s to be a little slower, but in any event progresses at the pace of the slowest party - very important when one client is not in the same emotional state of recovery as the other.

    Of course in certain cases, domestic abuse and financial misbehaviour situations for example, a court application may be necessary to protect an individual, their children or property. But these cases make up the tiny minority.

    A group of us in Ipswich provide in-court mediation in s8 cases. Despite the fact that most of the applicants have previously seemingly wanted to get into court, we have an 80% success rate with those that the court refer to us as suitable for mediation - about 60-70% of all applications. That's certainly better for children who would otherwise be drawn into a court process.

    The suggestion that our alleged fervour for accepting cases is fuelled by the cost we've incurred in training is below the belt. I am a solicitor, mediator and collaborative practitioner so I discuss all the options with my clients. Sometimes they want me to mediate, sometimes I have to refer them to another mediator. Others want to collaborate, and there are many who want to round table it
    using Resolution's Round-table Agreement or a co-operative agreement. Then there are those who don't live proximate to their partners and so I use phone and letters. But during the last 5 years of practice (since I trained as CollabMediator) I can count on two fingers the clients whose cases have ended up with some measure of court intervention - and by that I mean a Form A has been issued.I f I really wanted to get a quick return on my training investment, the easiest thing would be to ignore the training and simply run my new cases by filing Forms A at the earliest opportunity.

    The whole thrust of family law reform is to move disputes away from court, wher so much damage is caused and money wasted, and towards ADR. Some lawyers appear to be threatened by the rise and rise of ADR. The good ones shouldn't be but should embrace it. Those that don't will need to ensure that they have a ready supply of clients who will only want to litigate.

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  2. Hi Stephen - I was wondering when I would hear from you!

    My post does not suggest that opprobrium be heaped on mediators and collaborative lawyers, merely that mediation and collaboration are not panaceas, a point with which you agree.

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  3. Hi John,

    I wasn't aware that you had baited me, but when I see a strapline like that it's right up my street and I'm programmed to react. Much like Carl Michael Rossi clearly felt compelled to in a previous manifestation of the article's underlying sentiment at the beginning of the month.

    Mediation, collaboration and co-operative law are certain to be the future for family law practitioners, along with unbundling, the challenge that will be posed by lawyers' fees comparison websites, more Wikivorce type competition and a whole lot more.

    I really must start my own blog!

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  4. No baiting intended. Yes, you're probably right about the future for family law practitioners. Perhaps an old fossil like me got out just in time! ;-)

    Yes, do start a blog! A big commitment (be sure you have plenty to say), but very rewarding.

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  5. Nick Langford30 June 2010 09:08

    I was trying to review the evidence recently for the success (or otherwise) of the various forms of mediation and collaboration which have been tried, and they vary from the completely disastrous to the apparently very successful. Unfortunately it is almost impossible to compare them with the traditional adversarial process because no records of outcomes are kept.

    Where studies have been done scientifically with a control group there is evidence that mediation is effective, particularly when follow-up studies are done years later. There is also good evidence that mediation works best when it includes all issues (children, property, finances, etc) than when it covers just one.

    Stephen Baskerville said that no one agrees to anything in mediation if they can get a better deal in court, and this surely is the biggest obstacle to any form of mediation working: one party can always opt out and go back to court.

    It would be useful, John, to have a little more hard data in these discussions, and a little less opinion.;)

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  6. Thanks Nick. My post was not intended to be a discussion as to the relative merits of mediation/collaboration/court (although that would be interesting) - the intention was simply to point out that mediation and collaboration are not suitable for all.

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  7. I'd be interested to know where you've seen or come across ads or other material suggesting that they are a panacea (I'm not suggesting you haven't, just that I can't think of anything I've seen or come across from anyone within the profession suggesting this, although those of us who do pratice collaboratively do tend to be rnthusiastic about it because when it is suitable, it works really well.

    I always discuss all of the options with my clients and will identify the pros and cons of each approach to help them decide what is best for them, and of course the case only goes ahead if both parties solicitors are satisfied that it is appropriate - at the initial joint meeting the process and what can and cannot be done will be explined to the parties so even if one solicitor has been overenthusiastic their client will get a second explanation and opportunity to consider it.

    I find that some clients who are wary of mediation becasue they are worried that their ex-partner will be more articulate, or more used to being in charge, and will over ride them are enthusiastic about Collaboration as it combines the benefits of being able to negotiate their own agreement with the advantage of having the moral and practical support of their solicitor being present.

    I'm not sure about the return on investment point, either - After all, most of us offer Collaborative law as well as the more traditional approach - so I don't have a finacial interest in getting a client topick Collab. over other methods. I do however have a vested interest in the collaborative process succeeding, as if it fails, my client will have to go elsewhere to proceed via the traditional route, so it is directly against my financial interests to encourage unsuitable clients into the process.

    I don't think that Collaborative Law or Meiation are suitable for everyone, but I do think they are (particulalrly Collaborative Law) underused at present and that greater education of the public abouttheir availability and benefits is appropriate.

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  8. Thanks for that. It's just an impression that I've got from what some mediators and collaborative lawyers have said - as I stated in the post, I can't give examples without identifying people, which I don't wish to do. I see that you agree that neither mediation nor collaborative law are suitable for all, and I suspect you are right about them being underused at present.

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