lawyer mediators:
the unsung heroes of family dispute resolution


“Boost mediation in family disputes”, proclaimed the headline to an article in the 18th October edition of the Law Society Gazette. This was in response to a report by the House of Commons public accounts committee, which found that £10 million a year could be saved in family cases if the Legal Services Commission did more to encourage lawyers to refer cases to mediation.

This edition of the Gazette also featured an article on collaborative law by Jon Robins, entitled keeping it in the family. Mr Robins article contained some laudable sentiments about the non-adversarial aspects of collaborative law. He painted a vivid picture of evangelical lawyers returning from a pioneering trip to Canada, with visions of revolutionising divorce practice.

There was also a sprinkling of enthusiastic comments by self-styled celebrity lawyers. Mr Justice Coleridge is quoted as being collaborative law’s “greatest fan”.

Finally there was a little diatribe about the international perspective, collaborative law being a US phenomenon.

Not once was mediation mentioned, a surprising omission given that when American attorney Stuart G Webb conceived of the collaborative process in 1990,he garnered the best elements of legal practice and mediation into the model.

So why is mediation so casually ignored? Why is mediation not afforded the due plaudit of being at the forefront of non-adversarial family dispute resolution? After all, it wasn’t long ago that Mr Justice Lightman was referring to mediation as being “the foremost method of ADR”. Lord Justice Wilson addressing The Family Mediators Association in 2006, spoke of the “highly successful” use of mediation, but decried it’s under use.

The answer lies partly in the fact that the ever changing, and largely ineffectual, governing bodies of mediators are noticeably poor at championing the success of lawyer-based mediation. Then there is the nervousness of the legal profession in general to promote and encourage lawyer- mediated settlements. Why is this? There may be a variety of reasons, but commercial considerations must be high on the list. Indeed the silent “c” in the collaborative and other ADR models is cost. Both parties in the collaborative process are still employing lawyers to represent their interests, whereas a successful outcome with a neutral lawyer mediator results in those lawyers merely having to draft the agreement or order. A huge saving for the parties, but still a frightening dip in revenue for their lawyers. So mediation produces moral, social, and commercial tensions that are hard to reconcile.

It must be acknowledged that collaborative law has it’s place in helping to stem the flow of family cases through the doors of litigation, but to talk of it as “revolutionising” divorce practice would be misleading. If anything family law mediation has already achieved that pinnacle. It’s just that nobody seems to want to acknowledge its success. Furthermore, a truly collaborative process must, in my view, include mediation under its umbrella.

I was a family court lawyer for 30 years, but since becoming a full-time lawyer-mediator in 2005, the positive benefits on husbands, wives and children of sensibly mediated settlements have been all too obvious, from so-called intractable children disputes, to entrenched financial battles. Jane McCulloch of Resolution is right when she implies that mediation may not work for every family, but in my experience, very few cases are unsuitable for mediation.

The great benefit of mediation is it’s holistic approach in a complete air of neutrality, although of course clients have access to their lawyers throughout the process, if required.

Collaborative law stresses the benefits of a team approach that includes legal, financial, and other professionals, but mediators are largely overlooked from the category of “other professionals”. Mediation is a distinct area of professional practice, containing its own body of knowledge, principles, values and standards.

Some collaborative lawyers have trained as mediators. But it is not possible to wear both hats at the same time. The collaborative process looks at the overall picture of what is fair, but collaborative lawyers are legally bound to advocate on behalf of their clients and are necessarily precluded from adopting an impartial position. Working collaboratively is fundamentally different from what can be achieved by working with a neutral lawyer mediator.

In high conflict cases a skilled mediator can bring positive conflict-management skills into play. These complimentary skills can assist the collaborative process. In this way a collaborative practice can become effective and truly client-centred.

Because lawyers in the collaborative process represent clients, the clients own sense of what is a fair and reasonable outcome may become lost in the face of professional advice. This may limit or undermine the control that the clients are supposed to retain in the collaborative arena. In mediation, the undiluted principle of the client-centred process, bereft of any lawyer partiality, keeps decisions about the process, and its outcome in the hands of the clients. Adopting the principle of self-determination, mediators support clients in making their own fully informed and conscious choices.

Furthermore a client-centred process increases the likelihood that when settlements are reached it will serve the parties interests (rather than those of the participating professionals, whose own egos, values and agendas may sub-consciously inform or inhibit the process, albeit inadvertently). In collaborative law how is a good result defined? How are the ethics of each participating discipline influencing the process? What are the unspoken and often shifting dynamics between the participating professionals? It can be a task and a half managing the fragile dynamics shifting between the two parties, without adding the dynamics of legal representatives to the mix.

In the majority of family breakdowns, there is an unhealthy mixture of anger, frustration, blame, recriminations, hurt, fear and resentment, which are presented in dysfunctional communication patterns that prevent the parties from effective problem-solving. Such dysfunctional communication can have hugely damaging and debilitating effects on their children. A wholly client-centred process goes beyond simply creating out-of-court settlements; it empowers the parties to take control of their lives and at the same time find mutually satisfying settlements.

Uniquely, mediation can and should have a therapeutic element. To successfully problem-solve, conflict has to be managed effectively. The role of a highly skilled family law mediator is not simply to expound the law, deal with full disclosure, and brainstorm options with the parties. He or she must address the all-important issues underneath the issues, the silent movers and shakers. This involves understanding the subtext of unresolved conflict. Ultimately this helps couples through the transition from marital to parental roles, and block or change patterns of conduct that are likely to impair productive negotiation.

The Family law mediator has manifold roles that combine legal expertise with facilitative, evaluative and therapeutic skills in a therapeutic model. Not only do clients save time and money. They are also able to reach fair and lasting settlements, and at the same time preserve or improve their parental roles which must endure beyond the negotiating table.

Family Law Mediation goes far beyond what any other form of ADR can achieve because of its fully integrated holistic approach grounded in a totally neutral legal framework. More can and should be done to make mediation more widely available. More must be done to implant mediation in the cultural psyche of the legal community. Mandatory assessment for mediation (not to be confused with mandatory mediation) within the court system, as adopted by many American states, would be a start.

There is no doubt that the Family Law Mediator has changed the landscape of divorce settlements. Family law mediation has the ability to help separating couples reframe the divorce experience in positive terms and whether it’s the McCartney’s or Mr and Mrs Average that can only be a good thing for society as a whole.

Published in Family Law Journal February 2008