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Putting the muscle into mediation

Mediation is a great way to help people sort out the legal matters that come up when relationships break down.

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The ability to work out the children arrangements as well as the money, property and belongings all in the same setting and with the same person is one of the great advantages of mediation. It also means you can avoid going near a courtroom and (hopefully) keep animosity to a minimum.

But of course there’s no ‘perfect’ way to resolve these messy matters and mediation is no exception.

My experience is that some clients struggle to get their head around the fact that:

  1. Mediation is a voluntary process and you can’t force someone into it;
  2. The mediator doesn’t make the decisions for you; the decisions are yours to make, the mediator just guides you; and
  3. You don’t necessarily come out of it with a legally enforceable order.

Although they like the principles behind mediation, these clients often want more certainty that they’re going to get a legally enforceable outcome at the end. They may also want a mediator who is more directive and who can and will make some decisions for them.

I’m a pragmatist at heart and, in my view, mediation is a broad church that can be used flexibly and creatively in a way that gives many of these clients what they want.

The truth is that there are many mediators out there who are willing to take a pretty directive approach when explaining to clients what would be likely to happen in a court if their case got to that stage. Also, in the process of discussing with clients what their options are and testing them out, there are mediators who will make it pretty clear what they think the best options are. Obviously, it’s a fine line between giving legal information and giving legal advice (mediators are allowed to give the former but not the latter) but every mediator has a different view as to where this line needs to be drawn.

Some mediators are now also willing to draft an order for clients if the mediation is ‘successful’, setting out how the assets are going to be split, whether maintenance will be paid and so on. This marks a change from the traditional approach where a mediator would draft what is called a ‘Memorandum of Understanding’ or ‘Outcome Statement’ and one or other of the clients would then have to involve a solicitor to convert that document into an order.

Again, my experience has been that several clients have been befuddled as to why the mediator couldn’t just draft this order to save the client having to go back to their solicitor to do it. So I’m sure that many clients will welcome this development.

Such orders will need to be checked carefully by a judge before they are approved and I would hope that most people would be able to enlist a solicitor to give them even just a bit of advice before they agree to sign such an order. However, I can understand why clients want the mediator to draft the order. And in my view it’s safer for mediators to draft them than the clients themselves.

If a situation hasn’t been resolved in mediation then clients can get particularly fed up if they feel that they then have to go right back to square one. A couple of ways have been found to address this. One is that a lawyer can be brought into the mediation to give an opinion/evaluation as to what they think the outcome would be if it went to court. This opinion isn’t binding but it is often very effective at persuading people to agree terms. Alternatively, an arbitrator can be brought in who can give a binding decision on the issues at stake.

I believe that all these developments that I’ve mentioned are all ways in which mediation is evolving to become more able to meet clients’ needs. This should be our overriding aim and, as long as we are working ethically and with integrity, I have no problem with this direction of travel. Mediation is a great option and I think we owe it to the clients to do what we can to make it work for the widest possible client group.