The illusory wonders of mediation, by Marilyn Stowe

My recent post published on Family Lore has attracted a great deal of positive support even in Canada. Ceri Griffiths, a UK financial planner for divorcing spouses, and well placed to comment, wrote: ‘I often work with clients who are just desperate to know what a fair split would be in court, as they can't get that direction from their mediator (nor can I give it). I think there are many couples who just want the legal input to understand the boundaries, and then they can move ahead.  There seems to be a lot of going around in circles to me.’

I’m pleased with the overall reaction because my post was a deliberately strong piece, not only written as a forthright Yorkshire woman, but also because I have the qualifications to back it up.

I am the former senior partner of a national practice I built from next to nothing, and a champion of several lawyers in my firm who qualified in the various ADR routes on offer, including mediation. I was one of the first qualified mediators and family law arbitrators. I was also the first Chief Assessor of the Law Society Family Law Panels for six years, during which I helped devise and implement both levels including selecting 40 assessors, interviewing hundreds of family solicitors, and personally devising the content for the conferences and setting exams. It was the Law Society’s biggest panel when I decided to step down.  If anyone knows the family law profession, how it really works, what the public really wants in a family law situation and what is actually provided for them, it’s me. The Law Society has now issued a press release on the subject of mediation and vouchers which can be read here. I think it isn’t strong enough and doesn’t go far enough. With an exciting new President in post my hopes are high. One solicitor one couple will work. 

So let’s take another look, at how it works now.

Claire and Tom are getting a divorce. The first Claire knew of it was Tom’s announcement one morning a week earlier, as he packed his bags and left. Claire was feeding a six month old baby and struggling to dress her 3 year old son. Tom had begun an affair at work. He had made up his mind to leave over the last year of lockdown, blaming the pregnancy, Claire’s moods, stress at work. His new life beckoned alluringly. Money was going to be tight. He had read up on the internet. He suggested mediation to Claire to keep it amicable, and save money. 

Sitting shocked in front of a kindly sympathetic mediator, Claire asked for legal advice. The house, the money, the children, the divorce. ‘I can’t do that’ said the competent mediator sympathetically smiling at her, ‘I am not legally qualified but I can help you sort out all the problems between you, there is a very good process and we can bring in experts as necessary. You should go and see a solicitor, get your own legal advice and come back.’  But but but….Claire no longer trusted Tom. She hated him. He lied. He had ruined her life and those of the children. She would believe nothing he told her ever again. She was terrified. What would happen to her and the children? The mediator had provided no answer. 

They both went to see their own sympathetic and competent solicitors. Both were given different sets of not unreasonable legal advice suitable for their own future needs and with lawyer’s correspondence soon under way, Claire and Tom completely stopped speaking. Claire stopped Tom seeing the children. There was no way another woman would ever care for her children. Tom reduced her maintenance pleading poverty and put pressure on Claire to sell the house. He stopped paying the mortgage. Both thought the other despicable. A return to mediation for both was completely off the table. 

Finally two sets of court proceedings were issued. 18months later £thousands spent on legal fees, the parties finally settled and have bumped along ever since. Tom does not see his children with any regularity. Claire has had to sell the house. 

This isn’t based on a one off tragic case. Every family lawyer reading this piece has met many Claires and Toms and others in other similar situations with similar emotional and (considered objectively), understandable but irrational responses. And varying outcomes over varying periods of time. Our family law actually provides for creative tailor made solutions. The beauty of the law, is no one size fits all. Discretion is built into the law. It is perfect for a negotiated consensual agreement. 

Our adversarial system however is far from ideal, and that is widely acknowledged by all who work in this complex, tragic field. 

Neither is mediation ideal, it fails particularly because legal advice may not be given and all the various permutations possible may never even crop up. 

I’m afraid, therefore, criticise mediation we must. It is necessary to put our heads above the parapet when Government is once again pushing it as an option for thousands. Mediation has a major flaw. . It has failed many tens of thousands of people who have had the opportunity to mediate - even with legal aid and now with £500 vouchers for qualifying cases. It remains, like it or not, an unpopular option. 

The public has voted with its feet. And the result?  Even if they can’t afford a solicitor, they will often apply to the court direct, many paying prohibitive fees, and pre-Covid many were even desperately relying on free court services staffed with well meaning people expressly mandated not to give legal advice, (heaven forbid) but help complete the forms. 

So I repeat. Whilst innovative barristers have seized the initiative, benefitting from their entitlement to offer legal advice to a couple, and are congratulated on their forward thinking and success, even  rewarded with a hefty grant, solicitors dependent on others for such a change to do exactly the same are much less fortunate. Can they or can’t they? And the public is ill served. 

The entire profession should back family law solicitors, swing into action and provide much needed confirmation that solicitors in all family law firms can offer one couple one solicitor advice. 

It is an obvious clear route for the real life Claire and Tom - but is it as clear to the people who really count, the government still hanging on grimly to the illusory wonders of mediation in lieu of legal advice when it is so desperately needed?

Imagine if the leaders of our profession could convince all those necessary. And imagine if instead of vouchers, solicitors might even be able to submit a form for payment. 

Green would be a very suitable colour.