On 28 March 2017, I attended an evening with Mavis Maclean at Penningtons Manches, at the kind invitation of Veronica Gilmour, a partner in the firm’s family team, and colleagues. Maclean is co-founder of the Oxford Centre for Family Law and Policy at the University of Oxford and a senior research fellow of St Hilda’s College. She is also co-author, with John Eekelaar, of Lawyers and Mediators: The Brave New World of Services for Separating Families (Bloomsbury, February 2016) – a must-read for all those working within the family justice system.
As a leading academic commentator on socio-legal research, and having previously been fast-tracked to a desk in the Lord Chancellor’s department, Maclean is currently researching the available resources (or lack thereof) for those who are not at the high end of the market.
Lawyers and Mediators navigates the landscape of family legal services since LASPO. We are now in an untenable position, and one where perhaps it is cautiously optimistic to believe that the government recognises that LASPO went too far. Although legal aid is available for family mediation, there is no public funding for legal advice, and research has repeatedly shown that it is access to legal advice that people most need and want.
Under current constraints, mediators can provide information but they cannot provide advice. Is it time to revisit this basic principle and develop a model that enables the gap to be filled by mediators, many of whom are legally qualified?
Legally assisted mediation
Maclean believes we should consider a move towards ‘legally assisted family mediation’, akin to the current Dutch model. In the Netherlands, a group of lawyers has formalised the relationship between mediation and law by forming an association – Vereniging van Familierecht Advocaten Scheidingsmediators (vFAS) – made up of lawyers who are also qualified as mediators and mediator advocates who offer mediation with legal advice to couples who wish to and can appropriately work together.
Alternatively, if parties wish to be separately advised, vFAS offers the services of mediator advocates separately to each participant. These lawyer mediators are then committed to working in a non-adversarial way and negotiating with one other to reach settlement. If mediation begins but breaks down, the parties are free to seek the help of two separate lawyers who may be lawyer mediators. If this form of help also fails to reach a settlement, the parties can proceed to court for adjudication.
All the lawyer mediators are specialist family lawyers with at least five years’ standing who have been fully trained as mediators. When an intervention ceases, the lawyer mediator is not allowed to act for one party against the other, and nor is any member of their firm or any other adviser such as an accountant or counsellor who has been involved in the case. The lawyer mediator charges at the same hourly rate whether mediating or giving legal advice. The Dutch model appears to be working well, providing a service that clients want and need at the same time as utilising the various skills of the mediators and advocates.
Back in this jurisdiction, the SRA has confirmed that one solicitor may act for both parties if there is a ‘substantially common interest’. The most recent guidance published in August 2015 enables a mediator who is also a solicitor to draft the consent order after a successful mediation, in their capacity as a solicitor. Although the SRA makes decisions about the regulation of solicitors, and how they may act in that capacity, the Family Mediation Council (FMC) is considering whether mediators from all backgrounds might be permitted to draft consent orders.
The FMC has recently published a consultation in an attempt to determine whether it is appropriate for family mediators to prepare a consent order where a mediation has resulted in consensus. The results of this consultation, perhaps unsurprisingly, are inconclusive. Opinions are currently polarised among the mediation community and those with an interest in family mediation, with a range of responses expressing absolute views either in support of or opposed to mediators drafting consent orders. Some views are naturally more subjective, holding that ‘drafting consent orders is appropriate only in limited circumstances’ and that ‘it is possible to draft consent orders without giving advice in theory but not practice’. Ultimately this is a topic that warrants continued consultation and debate over the coming months.
There is no doubt that there is public appetite for the instruction of a single professional, and a combination of mediation with legal advice would indeed be a very attractive offering for some clients. Perhaps the momentum for change is now unstoppable.
Karen Barham is a solicitor and mediator at Barlow Robbins and a Resolution representative and co-director of the Family Mediation Council