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Family ADR: why the slow takeup?

18 Apr 16

Why mediation and collaborative practice have been slow to catch on in Scotland, the responsibility on family lawyers, and what might be done to improve matters

by Alan Susskind

Advising family law clients can be hard. The legal issues may be reasonably clear, but particularly for those clients whose relationships have recently ended, there can be a lot of other baggage that requires to be filtered through.

Invariably there is a raw feeling. It is an emotional time and clients can be upset, sad or angry. They may not be thinking straight and will probably receive wisdom from friends and relatives who have their best interests at heart but also have their own prejudices.

So the family lawyer has to cut through this tangled web and try to create a path forward for the vulnerable client. We focus on what is best for the children, if there are any, and how the finances should be sorted out. However, underlying all the discussions we have about these matters is the undeniable truth that the client is affected to a greater degree by the fact that their relationship is at an end and everything will be different in the future.

Significant responsibility emerges. Advice given, both legal and non-legal, will affect the client for the weeks and months thereafter, and quite possibly forever. Advice in relation to the welfare of children can have ramifications through the generations as children and grandchildren are affected by the rancour surrounding the end of the relationship.

Some advisers do not focus on this. Some are aware of it but do not believe that it is within their remit. For those practitioners the rules are laid out for us and we advise on them. While I can understand the theory of this argument, I do not understand the practice. Scottish lawyers remain the gateway for seeking advice in connection with the breakdown of a relationship. As long as that remains the case, I do not think these responsibilities can be avoided. That said, there is a strong argument that the training we have received in law school does not prepare us for the non-legal aspects of our interaction with our clients.

Is mediation the ideal form of dispute resolution?

Advice on the process to follow can be every bit as important as advice on the law. Traditionally we meet with our clients, take details in relation to the circumstances and recount information in correspondence to the other party and their advisers. Written communication between the parties follows – typically formal in nature and adversarial in tone. Clients can be driven further apart before the advisers try to bring them together. If this form of negotiation fails, litigation beckons. While there are a percentage of cases that require to be decided by third party involvement, surely it is not beyond the ken of most clients and advisers to resolve their situations without that necessity?

Over the years, some other processes have been considered to try and deal with these relationship breakdowns in a civilised way. Family mediation is well trailed and is perhaps the purest form of dispute resolution. If the clients are willing, we get them in the same room, provide an experienced facilitator and let them use their own wit to bridge their differences. There are problems with this. Often clients have already instructed solicitors and built the relationship with them. It can be counterintuitive for them to enter into a process where to a large extent solicitors are excluded. If they are thinking straight, the clients may well be able to reach an agreement but, as we have discussed, emotions are raw and these can easily obscure the way forward despite the skilled intervention of the mediator. Our mediation style is facilitative. It is non-directive. The mediators are not supposed to be outcome driven.

An important aspect of the whole mediation process is creating an environment where further communication between the parties should be easier. This is a benefit in itself, but the route towards this takes time. In reality, repeated sessions would be required and the lawyer/mediator must have the skills necessary to assist the clients in this regard, which some will not.

Why has mediation not taken off in Scotland?

Mediation is the ideal, but the takeup of mediation in family cases has been slow. In England mediations have a higher profile, but this is a result of it being pushed by the Government. In our jurisdiction, where the Government appears to be lukewarm in relation to actually moving mediation forward, it remains very much the province of the adviser to advise whether the mediation process is the best way forward.

The bottom line is that the training for solicitors is training in an adversarial process. While mediators receive excellent training in various personal skills, it is not the lawyer’s day job and there is an argument to be made that some lawyers do not make good mediators. There is also an argument that the parties’ solicitors should be more involved. In commercial mediation, represented mediation is common. The model that is traditionally used in family cases is non-represented mediation.

Collaborative practice – an alternative to mediation

Collaborative practice has become more popular, perhaps in part due to some of the reasons that have led to the slow uptake of mediation. It still cannot be regarded as mainstream but it has a significant advantage over mediation, in as much as the client’s solicitor is with them throughout the process.

However, for some family lawyers, the idea that there should be a written agreement that they will not represent the client in court is an anathema. The very process that they have been trained in is the process that they are agreeing to forego.

In my experience, the period immediately following separation is very important. For me, the principles behind collaboration are logical and make sense, and should bring about positive results in many cases if some barriers can be overcome. Both solicitors involved require to be collaboratively trained, and you cannot undergo the process if one solicitor is and one is not. The pool of potential solicitors is therefore quickly diminished, despite an increased number of family lawyers who have been trained in collaborative law.

More subtly, if people have just separated, the idea of working together to try and resolve matters may appear civilised in principle. However, once the process begins and the clients relax into the process and feel free to say what they will, the reasons for the breakup can re-emerge and the collaborative lawyer needs advanced mediation skills to keep the process working in the way it was designed.

One of the great advantages of collaborative law is that you can introduce experienced non-lawyers to assist. An example of this is a family law consultant. There can be a referral to trained psychotherapists who can review with the clients matters that perhaps lawyers cannot, smoothing emotions to try and help the process along. In Scotland, in practice, this happens rarely. The worry about the collaborative process is that while everyone might start with good intentions, in many cases care is not taken and the process becomes just another form of adversarial negotiation, with correspondence creeping in where it should not and non-collaborative attitudes emerging from lawyers. None of this is to say that the collaborative process is not worthwhile, but it is not a panacea.

The least our clients can expect

In a difficult situation perhaps there is no ideal process.

The challenge for the solicitor advising is to pick the right process, taking into consideration all the pros and cons. The reason I have focused on the cons is that most articles on mediation and collaboration seem to present a rosy picture. This is simply not the case. The fact of the matter is that we are looking at a difficult situation and trying to find the best way to provide a resolution.

In the same way that we are diligent in taking as much information from our clients about the welfare of their children and the details in respect of the finances before advising about the best process, which we are bound to do, we need to know a bit more about them and the issues that are important to them.

That may seem self explanatory, but mediation training indicates that the issues that are important to clients are not always obvious and it is particularly important that the solicitor understands what is important and what they would like to see happen. Some of the outcomes may be specifically legal. Other may be non-legal but material nevertheless.

There is therefore, perhaps, more work to be done at the beginning of the case. Once information has been received about the facts of the case and issues have been discussed, at that stage the adviser should be able to provide an explanation to the client of the various processes that could be followed and, based on the client’s response, provide a recommendation about which process might bring about the best result.

As alluded to earlier, selecting the wrong process at the outset can have significant adverse outcomes for all parties for many years to come.

Alan Susskind is a partner in the family law team at Harper Macleod LLP, an accredited family law mediator and a member of CALM, the organisation for solicitors/mediators. He has also trained in collaborative law and is the convener of the Glasgow “pod”.

 

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