Non-legally trained mediators: a Tour de Farce?

A few days before le grand départ of the Tour de France, I was a guest at a lunch in the Yorkshire Dales of the barrister set Broadway House Chambers, celebrating the 40 years in practice of Martin Wood. There was a great turnout for one of the most respected and best family lawyers in the country.

Sitting next to me was a lady
I assumed was a lawyer, but it emerged she was a mediator. Accredited mediators have a professional qualification in family mediation, recognised
by the Family Mediation Council and the Legal Aid Agency.
Some accredited mediators are from a legal background, some are social workers, Cafcass officers, teachers, nurses, drama therapists and hairdressers. There is no professional barrier to entry.

She was at pains to assure me she wouldn’t deal with a complex ancillary relief [financial settlement] case, but when I asked, she couldn’t tell me what ‘complex’ meant to her and, in fact, she only reinforced my view that mediation is fundamentally flawed. So much of it proceeds on the assumption that legal expertise is irrelevant.

Evidently she plays no part in the negotiations, save helping couples to reach agreement between themselves. “But how do you know what you’re dealing with is correct? How do you divide pensions, for instance?”
I asked.

She conceded she wouldn’t know what to look for generally, or how to check whether the figures are accurate or not.
Nor did she know the legal parameters for settlement,
or how to structure one, for example, to fit in with the parties’ reasonable needs.

According to the Ministry
of Justice, 13,609 cases of mediation were started in the last year before the new rules came into effect. That number dropped to 8,400 in the year since the introduction of LASPO.

As a result of such a drop,
the MoJ has underspent on family mediation for the year
by £16.8m. Family mediation cost the MoJ £14.3m before LASPO. Since its introduction, that has fallen to £7.5m.

In a court process, or an arbitration, or a mediation such as those we offer in our practice, there are legally qualified lawyers working as mediators and/or representing the parties. The judge and all the lawyers involved know from years of experience exactly what is needed to resolve the issues between them and how to
reach an outcome that is
legally fair and just for both.

As someone recently wrote
to me, it’s a truism that it is impossible to have an academic discussion about an issue where someone’s livelihood depends on their version being correct.
I deplore the fact that the government is doing its best
to push as many people as it
can towards mediators, qualified
or not.

As long as a conclusion is reached, it doesn’t seem to matter what kind of agreement has been reached. Non-legally qualified mediators are, in my experience, perfectly pleasant and most mean well. But the
role requires more than good intentions. SJ

Marilyn Stowe is the senior partner at Stowe Family Law