Bar Focus | Mediators can work hand-in-hand with barristers

Mediation, mediation, mediation. Talk of it seems to be everywhere at the moment. Anyone practising in family law will be aware that mediation has been happily bubbling away in the background for decades, not only in its pure form but also through CAFCASS officers, social workers and the various local authority Family Group Conference schemes. Suddenly it has become the focus of everyone's attention, leaving many lawyers bemused and established mediators blinking in the spotlight.

As a barrister I have undertaken all areas of family work: public, private law and finance since I was first called in 1997. Since 2007 I have practised exclusively in the family courts. Despite recent suggestions that all lawyers do is add to family conflict I, and most of my colleagues, spend our days trying to resolve cases without actually having a contested hearing. We family lawyers, as any one of you reading will recognise, spend much of our time negotiating in corridors and on court landings the country over.
Our aim is always to try and reach an agreement which is acceptable to both sides, always, of course, bearing in mind the best interests of our own clients. I have not yet come across a family lawyer who will walk straight into a contested hearing without some effort at resolving the dispute through discussion first.

The answer to funding cuts?

It was 18 months ago that my colleagues and I in Chambers became fully alive to the sea change that the government's present policies would bring. Cuts in funding for private law clients, save in limited circumstances, mean that the vast majority of people who presently have the advantage of legal advice will be forced to represent themselves in court or come to some arrangement by themselves. While that poses problems for those arguing about their children it is even more difficult for those trying to sort out their finances. The need for a consent order to finalise divorce is still there. Many people don't even realise that. Where do people start with getting from a separation to organising their finances by themselves? The government's answer to that is mediation.

When the legal funding goes it will be replaced by publicly funded mediation by those holding a contract with the LSC. Of course that is already available through many established services, but it is being expanded to meet what the LSC anticipates will be the greater demand.

Many lawyers are skeptical that mediation is the answer, and I agree that it is not a panacea. It will not suit all people or all situations. However we forget that there are thousands of people each year who split up, sort out their problems and move on with their lives, all without the help of the family justice system. As a barrister I forget that most of my cases are the extreme examples of people who have made it all the way to a final contested hearing, some of them relishing the prospect. They are, in fact, a significant minority of separating couples. Research tells us that, particularly in cases involving children, an arrangement arrived at by agreement between the parents is better for the adults, far better for the children, and likely to be more sustainable over time. Anyone who has spent any time in court does not need research to tell them that. Parents who are forced into a position usually react by fighting against it. Any vestige of trust and co-operation vanishes and the parties are left in a cycle of pursing or defending enforcement proceedings. Often they then feel victimised by the legal system as well. Any alternative that eases tension and begins to increase trust is preferable. Any system which enables the parties to find a new way to communicate as separated parents must be better.

The other worry from lawyers is that the public funding cuts will hit them and hit them hard. Although there is a fat cat reputation which is popular in the press it is not usually true of those toiling at the coalface of publicly funded work.

A new partnership

I don't share the pessimism. I think that lawyers are adaptable and will pull through. There will always be abused and vulnerable clients who need the help that only lawyers and the legal system can give. That core service must remain. However, there is an opportunity for a new relationship between mediators and lawyers if both sides are willing to work to form it.

At present people turn to solicitors when they have problems. That will change with the funding is removed. Instead, if the government plans materialise they will come to mediators. They may be eligible for funding, they may not. Either way mediation will become a more frequently used first port of call. Mediators will still need to advise participants to seek independent legal advice periodically either to ensure that they are reaching conclusions which are fair and appropriate for them or to have their proposals turned into binding legal documents. For those clients who are entitled to public funding that can be done under the Legal Help Scheme. For those who are not, and who normally say 'I can't afford a solicitor', it will significantly reduce their outlay and they will find that they can afford advice when those two routes are combined.

An opportunity not a threat

Mediators are not seeking to take away lawyers' work. We are not a threat. We both have a place in dealing with family breakdown. If we all work together, recognising each other's qualities and differences, we can find a model which will provide better service for clients and let us all move forward into the brave new world which is coming to find us whether we like it or not. I hope that as barrister-mediators we are well placed to bridge that gap.

In our chambers six of us have taken the leap to qualify as mediators. Our local area is one where publicly funded work is the norm rather than the exception, therefore we are also bidding for a contract from the Legal Services Commission so that we can actually offer a comprehensive service. How to go about this was the subject of much consideration.

It is important to us to deliver a service which provides the same strengths and values that have enabled our chambers to thrive over the years. This means local solicitors are confident when referring clients to us that they will receive a good quality service, professionally conducted, from people who understand the issues involved and are extremely familiar with the legal background against which such disputes normally arise.

At the same time it is important to recognise that when we are mediating we are not barristers; we are mediators. We are not there to provide advice or to steer the outcomes in any particular direction. Therefore a distinction between the identity of the mediation service and chambers is essential. This ensures that the service carries out its role ethically and that there is a clear psychological distinction for mediator and client alike between the advice-giving role of the Bar and the impartial facilitation of the mediator.

Finally a Chambers is set up to deal directly with our professional clients, not with members of the public. We felt it important to provide a service that lay people can access directly without feeling put off or inhibited. We have created a much more approachable atmosphere and easier to access information aimed directly at lay people to enable them to understand the possibilities and limitations of mediation.

And so Fountain Mediation Limited was formed, as an alternative business structure (ABS). We have also secured the support of another local (non-lawyer) mediator with many years experience who has come on board as an associate.

For us this is the perfect compromise: a separate identity from chambers with our own website and dedicated phone line while maintaining a link with chambers' established reputation.
We all believe that keeping our grounding at the Bar while developing our skills as mediators is a strong base for establishing a reputable alternative to the court system for those clients who are willing and able to access it.

Although there are many barrister mediators who practice as individuals or are attached to established mediation services we believe we are the first set of chambers to develop our own service. It is a novel venture and these are early days. Who knows what the future will hold but for now I, at least, am looking forward to the challenges ahead.