Back to top
Article

Let mediation take the strain

1 June 03

Authors recommend using mediation to resolve family law disputes and outline how solicitors can go about referring clients to mediation

by Anne H Dick, Ewan A Malcolm

Consumers see law as a “distress purchase”. It would be unrealistic to expect clients to regard family law as fun but there is a way of allowing it to be seen as part of the solution rather than part of the problem.

People do turn to family law because they have problems to sort out. They will usually be trying to cope with significant change. In many cases this will not be of their choosing. If so, a legal adviser is likely to be seem as part of a very unwelcome new dimension. The information and advice provided may well be constructive and appropriate within the context of the changes but still tainted by association.

Even if the client is bringing about the changes by initiating the separation or divorce he or she may not have foreseen that part of the package was to expose his or her aspirations to the light of family law. Very few people find it easy to yield up privacy and control over decision-making to a stranger.

A very helpful book “The Trusted Advisor” (Maister, Green & Gailford, Simon & Schuster ISBN 074320963X) makes the point that it is not enough for a professional to be right: an adviser’s job is to be helpful. Giving correct information is essential but not sufficient.

Mediation can help foster a relationship between client and legal adviser, which the client will perceive as helpful.

In the first place, suggesting the option of mediation provides a client with the opportunity of as much self-determination as is possible. A mediator is a catalyst, not a referee or adjudicator. Clients using mediation are provided with a structure for discussion and exchange of information. They are helped to use the opportunity to look at possibilities rather than engage in unhelpful dialogue. They are not told what to do. 

If the client elects not to pursue mediation then the involvement of an advising lawyer to negotiate or litigate is a matter of choice rather than imposition.

There are obviously circumstances which would preclude using mediation. It would not be an appropriate step if there were a history of violence or intimidation in the relationship sufficient to prevent a client being or feeling safe enough to explore possibilities in the presence of their partner. In that case, the legal framework should offer a welcome and reassuring buffer.

In very many cases, however, mediation is a possibility which should be considered. Clients can be told that for part of the process of negotiation a couple can use a mediator to assemble information, explore common ground and look for mutually acceptable solutions. Some clients will respond positively and be relieved to learn decisions can be tackled in this way. Some clients may be wary and wish to be reassured that mediators are complementary rather than alternatives to advising solicitors. Some clients will know immediately that mediation is not for them.

Those clients who decide to use mediation will still need important input from advising solicitors. Mediation is complementary to, not instead of, legal advice. Those clients who decide not to use mediation will be reassured that their legal adviser offered impartial information rather than pursuing his or her own agenda.

The second way mediation can provide a helpful input is for advising solicitors to combine mediation skills with legal knowledge to allow valuable advice and information to be absorbed and used as part of a problem-solving process. Mediation skills make it possible to build a relationship of trust with the client, to have a structured approach to the steps which have to be taken and to create a climate which encourages solutions to emerge.

Information is an essential building block in negotiation but by itself will never deliver the answer. How people feel about a situation is a crucial factor and if ignored, can block or distort negotiations. How and when information is made available can also be pivotal.

Mediation training can give an insight into the power and importance of paying attention to clients, of listening as well as speaking and of asking the right questions as well as providing the right answers. It underlines the significance of the appropriate use of language. It emphasises the need to clarify and summarise. It fosters the use of planning and time keeping. While mediation is rooted in co-operation and a search for consensus, this is to be achieved with professionalism and accuracy. Mediation training is a rigorous process but rewarding for parties and practitioners.

So what is involved if your client chooses to use mediation or if you chose to do mediation training?

Referring to mediation

There are two organisations in Scotland offering family mediation. Family Mediation Scotland has affiliated services in regions cross the country. Most FM mediators, who are trained and subject to careful supervision, take on cases after a separate intake meeting with each party. Sessions are usually free except for All Issues Mediation, where sessional fees apply. They will only deal with cases where the parties have children under the age of 16 years. Some services also offer mediation on financial as well as child related issues.  In addition, FM services do important work in the provision of contact centres and other initiatives to support children through the difficult period of family breakdown. To contact the local service call FMS on 0131 220 1610.

CALM is the organisation set up and run by solicitors who are accredited by the Law Society of Scotland as Family Law Mediators. All CALM members are experienced family lawyers who have and continue to undergo extensive mediation training. To refer a case to a CALM mediator, simply call or write to one of the mediators in your area (there are over 55 practising members around Scotland). If a recommendation would be helpful, contact CALM’s regional convenor listed on the freephone number 0800 9150080

It is important that both parties are willing to attend mediation and that funding has been clarified at the time of making the referral. CALM mediators usually charge around about the  recommended Law Society General Table hourly rate. If your client is on Advice and Assistance or Legal Aid it is important to get authority in advance as payment for this expenditure can only be made as an outlay on the advising solicitors account. The Scottish Legal Aid Board will usually grant sanction for cover for the cost of half of four sessions each of two hours long.

The CALM mediator will send out an initial referral form for each party to complete before the first meeting along with a letter (which parties will be asked to sign) explaining the guidelines and process of mediation. Each session will usually last no more than two hours – any longer can become counter productive as even the most amicable separating couple can find these conversations hard going. 

At the first meeting the parties work with the mediator to set the agenda for their assisted negotiations, prioritising their various issues. Then they start gathering the necessary information. As both undertake to make full financial disclosure, the mediator can help, using lists and additional questionnaires to collect together all the details of matrimonial assets and liabilities required along with appropriate vouching. Sometimes parties ask their lawyers to help with this process.

Usually at the second or third meeting it helps to tabulate information, by pulling together the numbers and issues on a flipchart. Then, and only then, the process can move to the generation of options. The mediator makes full use of collaborative skills to encourage parties away from positional bargaining. Legal advisers can help by discussing a range of possible desirable outcomes so that the clients’ expectations are realistic and manageable.

Options are explored without fear of commitment, developed and then reality tested. If they are mutually acceptable they can become proposals. Often, the CALM mediator is asked to produce a Mediation Summary detailing these proposals and outline the background discussions leading up to the formulation of the proposals. Also, often an Open Summary of Financial Information is produced so both parties and their advisers can use this disclosed information in whatever further process they require.

Mediation Training

All CALM members have undergone a foundation six day training course lead by the internationally renowned Family Mediation Trainer Lisa Parkinson, who is CALM’s Director of Mediation Training. CALM would like to hear from appropriately experienced candidates interested in such a course as soon as possible. Anyone who would like to know more about family mediation foundation training should contact Rhona Cameron at Robson McLean, 28 Abercromby Place, Edinburgh (0131 556 0556).

CALM members require to continue to do eight hours mediation and nine hours family law training along with one co-mediation and an observed session on which a trained assessor reports to the Law Society accreditation panel, annually. The benefits of CALM membership are that there is a tremendous network of similarly committed and trained colleagues throughout Scotland all focused on developing practice in this wonderfully demanding area of work

Anne H Dick is a partner with Anne Hall Dick & Co in Glasgow and Ewan A Malcolm is a partner with Drummond Miller WS in Edinburgh. Both work together as skills trainers for lawyers.