If lawyers and mediators don’t work together to give clients what they want, others will, says guest blogger Mary Banham-Hall.
Mediation is a flexible and effective resource that many lawyers are still failing to exploit to its full potential, yet it is one that can speed up case management, improve the divorce and separation experience for clients, and improve client satisfaction, thus attracting more work. Mediation has the added advantage of attending to many client’s emotional issues.
Mediators can no longer be seen as being in competition with lawyers for legal work. Rather, the competition comes from two other sources: divorcing couples representing themselves as a result of online research, and organisations who claim to be able to provide a pain-free divorce at rock-bottom prices. Both lawyers and mediators need to show how they can help couples by providing a faster, more efficient and affordable service than the service provided by the other options available. By cross-referring work more swiftly and frequently than in the past, lawyers and mediators can work co-operatively at what each does best to give clients what they want. Together they can build public trust and their respective market share.
Some examples of the advantages of a successful collaborative relationship between lawyers and mediators are:
- Cuts to the Ministry of Justice budget mean that the long delays at court that are so frustrating for clients will only get worse. Referring couples to mediation can resolve many cases, and if combined with arbitration for any outstanding issues, can guarantee a result with arbitrated awards obtained as a result of written representations within weeks.
- Leave to remove applications, and similar binary cases unsuitable for mediation, should be speedily returned to lawyers when they cannot be mediated. Mediation can then complement the court process, for example, a judge may add a prohibited steps order to a grant of leave to remove directing that arrangements for post-removal contact should be mediated. This can help the parents to restart communication and facilitate rebuilding co-parenting before the child is allowed to leave the country. Mediation is often the only realistic option for parents in different jurisdictions.
- Where contact with children is being obstructed, rather than ordering a CAFCASS report, which often delays proceedings by a minimum of three months, clients can be referred to mediation in order to agree on a direct consultation with the children and parents. Both parents can then hear the children’s views and issues can be resolved more rapidly and with less intrusive intervention.
- Mediation used in conjunction with a court application – where the timetable and hearings hold a recalcitrant parent to task, mediation can result in a signed parenting plan for the court file should the agreement be breached.
- When solicitors have all the information needed for a financial dispute resolution appointment, a case could be resolved in a single day by using mediation, for example, a mediator trained in both family and civil mediation can hold confidences shuttles between each client and their solicitor and a consent order drawn up and signed on the day.
- The law is a rational process, but separating and divorcing clients need help in disentangling the legally irrelevant emotional and psychological motivators which feed their disputes. Litigation ignores these drivers, translating them into a legal narrative. Mediators can give insights about these critical issues and once they are dealt with, clients can then understand and take full advantage of the legal process, and often agree their settlement.
If lawyers and mediators don’t work together to give clients what they want, others will.
Divorcing and separating families want fast, user-friendly and cost-effective solutions to their problems. Lawyers and mediators working together provide exactly that, which will result in satisfied clients using their complementary services more often.
Mary Banham-Hall, solicitor, FMCA, is lead mediator and managing director of Focus Mediation, and a family law consultant at Heald Solicitors. Her new book, Love Lose Live: Divorce is a Rollercoaster is published on 4 February 2016, with a foreword by Lord Wilson.