I read with interest the recent article in The Times (“Lawyers should stop treating mediation as a tick-box exercise”), which suggests that divorce lawyers should avoid treating mediation as a mere checkbox item. In my view, this has never been the case, nor will it ever be.
Guiding individuals through a divorce should be a collaborative effort. As part of this process, recommending mediation is crucial—it helps couples navigate the most challenging aspects of separation. The divorce itself is typically straightforward from a legal standpoint but can become complex when addressing financial matters and arrangements related to children. Mediation can be instrumental in resolving these challenges. Any lawyer who views mediation as a superficial step overlooks a valuable resource that can greatly aid the process.
During our initial conversations with clients, we outlined various options for resolving disputes. We encourage mutual agreement, discuss negotiation, emphasise the benefits of mediation, and consider alternative options like arbitration before resorting to court. Litigation should always be a last resort—it is costly, time-consuming, and often fails to deliver desired outcomes.
The article implies that lawyers are not adequately promoting non-court methods of dispute resolution. However, in our experience, this is not the case.
Ultimately, mediation offers a platform for couples to reach agreements on critical issues such as child arrangements and asset division during divorce proceedings. Mediators, skilled in negotiation, can facilitate discussions between parties and their legal representatives, providing an unbiased perspective to find a way forward. Mediation isn’t just for resolving deadlocks; it can be immensely beneficial early on, managing expectations, identifying potential challenges, and fostering a constructive mindset to facilitate progress.
Since 2014, it has been a legal requirement for couples to consult a mediator. However, recent figures reveal that in 2017, only 60% of couples complied with this requirement. The failure to meet this mandate raises questions about its execution.
The perception of lawyers treating mediation as a checkbox exercise may stem from the mandatory Mediation Information & Assessment Meeting (MIAM). Even in cases where mediation is deemed unsuitable, a MIAM is still required—at a cost to the client, I might add. Sometimes, these meetings are conducted without the parties needing to meet with a mediator in person, which could contribute to the perception that MIAMs are treated cynically.
When mediation was made compulsory in family law cases, it was suggested that solicitors were ineffective negotiators, prompting the government to introduce mediation as a solution. However, the reality is that not all cases are suitable for mediation, and some clients simply prefer to go to court, regardless of their lawyer’s efforts to persuade them otherwise.
Comments from mediation industry commentators that portray family law specialists as universally undervaluing mediation are likely to elicit strong reactions. While these comments may attract media attention, they are ultimately ill-advised and do little to help families in crisis. Our focus should be on nurturing better relationships for our clients, not on scoring points against fellow professionals.
On a positive note, the article underscores the importance and effectiveness of mediation, especially for parents navigating potential flashpoints. However, I acknowledge that there is room for improvement among a minority of lawyers to ensure that hostility is kept out of conversations. The portrayal of divorce lawyers as aggressive characters in TV shows is outdated, and professional bodies like Resolution advocate for a non-confrontational approach, which aligns well with mediation.
As an industry, we should work together to support our clients. Engaging in public disputes through the media does not benefit anyone. Most mediators we encounter are highly skilled and can assist couples in reaching agreements. When selecting a mediator, it is essential to ensure that they have experience in family law, particularly in your type of case.
Last summer, we gathered insights from a number of mediators for our blog post titled “20 Family Mediators Share Their Top Tips for a Successful Mediation.” This resource can be beneficial for anyone seeking a mediator or preparing for their first experience with family law mediation.
