Family mediation must become the norm
In her latest 'Family business' column, Marilyn Stowe questioned the government's support of mediation and ADR, claiming that it has failed to produce results. Solicitor Peter Jones (below) and mediator Marc Lopatin (right) respond that instead of falling back on old methods, family lawyers must push themselves and their clients towards these alternatives before it's too late
AN OPEN DOOR TO RESOLVING FAMILY CONFLICT
A recent survey by Resolution reminded me just how far dispute resolution has evolved. Beginning with the launch of Resolution – then known as the Solicitors Family Law Association – it sought to avoid conflict and resolve issues via a non-confrontational approach. Neither a magic wand nor silver bullet, it started a path of education, culminating in the definitive approach to family law and supported by the profession, the judiciary and demanded by the public.
Since then countless families have received constructive and practical advice with guidance on avoiding the trauma and bitterness of courts.
Yes, there remains a modest percentage of the public who want to fight in court – but they are the diminishing minority. Challenges for courts struggling to make time for listing and hearing applications will now be exacerbated with delays creating aggravation for families who will no longer have their affairs resolved expeditiously.
The initial response of training mediators – which does not suit everyone – enabled families to control and be part of their own solution. Collaborative law is again not suitable for all, but a second string to the family lawyer’s bow, built on this alternative method of resolution.
Acting as the third string, arbitration provides the best solution; enabling parties to control the process, achieve a speedier resolution, with confidentiality and adjudication. Considering that arbitration is only nine-months-old, the results of a Grant Thornton survey in which 48 per cent of lawyers support arbitration as a significant method for resolving family disputes in the next five years are heartening.
By encouraging mediation (the carrot) and withdrawing public funding (the stick), the government undoubtedly wants private family disputes resolved out of courts. I also foresee court fees escalating way above the rate of inflation. (Will this herald cost saving measures with a tear off section on a marriage certificate to be stamped at the local post office to grant a divorce?!)
With the days of the combative lawyer long gone, it is only by educating our colleagues about the benefits of dispute resolution that we will educate the public who, going forward, will demand dispute resolution in the same way that in more recent years they sought out non-confrontational advice and representation.
We are not here to yearn for the return of the good old days. We evolve and lead the way with innovative problem solving solutions – consistently serving the long-term interests of the family.
Peter Jones is a partner at specialist family law firm Jones Myers (www.jonesmyers.co.uk) and a former National Chairman of Resolution
DRAGGING MEDIATION FROM THE MARGINS AND INTO MAINSTREAM
So family mediation is a waste of time, according to Marilyn Stowe. While such a view will certainly draw fire from mediation governing bodies, Ms Stowe is spot on when it comes to fee paying separating couples.
But after three decades of false dawns, change could finally be on the way. It’s just very unlikely to involve private practice lawyers.
Separating couples are largely one-time shoppers. As such, they possess little (accurate) knowledge of the family justice system. They know next to nothing about what principles guide a court judgement let alone what separates so called alternatives such as family mediation from collaborative law. Yet a key characteristic of one-time shoppers is that while building up some knowledge of the system they have no need to reapply this knowledge, nor a great incentive to share it.
It means a vital feedback loop goes missing when it comes to conditioning the behaviour of the professional adviser that separating couples turn to: the high street family lawyer.
The behaviour of lawyers is remarked upon in positive tones throughout Ms Stowe’s piece. Her firm even used the lure of fixed fees to induce more clients to choose alternative dispute resolution (ADR) options for an entire month. But while there is certainly no shortage of family lawyers wishing they had more ADR clients to compliment their traditional caseload, they see ADR as just that: complimentary. Has a family lawyer ever been sacked because their referrals to mediation fell below target?
Until this changes, Ms Stowe is entirely correct to proclaim that family mediation will remain “a waste of time”. But this is not because separating couples are hell bent on turning to the courts. Rather, it’s the result of a lack of innovation on the part of family lawyers.
The problem is that bold innovation demands a correspondingly strong incentive, which certainly – although not exclusively – resides in the profit motive. But when you’re a partner of a highly successful private law firm the incentive is too weak to spur the bold innovation required.
But thanks to the government’s decision to withdraw legal aid from most private family law matters, that incentive now exists. In response, publicly funded family lawyers will need to do more than train up as mediators to survive. As their publicly funded client base shrinks by an order of magnitude, they’ll need to hugely expand the number of private clients walking through the door. And to do this, they’ll have to provide one-time shoppers with something different.
This is where family mediation comes in. In partnership with mediators all over their region, two centrally located publicly funded law firms could rebrand themselves as specialist hub providers of fixed-fee legal advice for separating partners willing to explore mediation from the outset.
It’s about commercialising a lower margin, higher volume advice-driven case load that private law firms (their new competition) have no incentive to market to for fear of cannibalising a private client base paying much higher hourly rates.
It is of course a huge ask of today’s publicly-funded family lawyers. ?They’re expert in navigating the vagaries ?of a subsidised marketplace but will ?soon be saddled with the new title of business development.
This won’t prevent the court system inching towards meltdown. That was ?never the job of family mediation. But ?a growing incentive among family lawyers to aggressively re-brand themselves as outright ADR specialists might finally drag mediation from the margins and ?save a few lawyer livelihoods in ?the process.
Marc Lopatin is a trained family mediator and founder of www.lawyersupportedmediation.org.uk