Book Review : Making mediation work for you – a practical handbook

Making mediation work for you (LAG 2012)Making mediation work for you – a practical handbook

Kate Aubrey-Johnson with Helen Curtis (LAG, 2012)

As someone who has recently trained as a family mediator I was keen to review this handbook. It contains a wealth of useful explanatory material about mediation in general, and about the way that mediation operates in particular areas such as community mediation, family mediation and workplace mediation.

The material is well presented and easy to understand, and the FAQs from established practitioners were helpful. I thought it odd though that several of the case studies set out a scenario and then explained that mediation had helped the parties to agree an outcome, without setting out what that outcome was. The sections on family mediation were well set out and clear and so apparently were the other subject specific sections.

For most readers though, I thought that in fact the coverage was likely to be a bit too rangy – I found myself skipping chunks of the book which were either teaching me to suck eggs, or covering areas which were not useful to my practice, notwithstanding an interest in other types of mediation. Whilst much of the material is apparently aimed at non-mediators, a large portion of the material appears to be aimed at mediators themselves or the legal advisors of the parties to mediation, for whom the more basic sections on what is mediation and why mediate are (one might hope) rather less necessary. So, to my mind, this is a book from which different people will pick and choose the chapters that interest or inform them, although few will benefit from every chapter.

However, as an introduction to the principles and benefits of mediation I would say this book would be invaluable, particularly for those who are likely to encounter one or more types of mediation tangentially in their everyday work – I thought for example that a copy should be on the bookshelf of every District Judge and every CAFCASS Office, every Local Authority legal department and every legal outfit be it chambers or solicitors firm. There is much that is poorly understood about mediation and this book really does help to clarify the boundaries and limitations of mediation as well as its potential strengths and flexibility.

I think that this is a useful reference text to call upon as needed, but not one which is best suited to a cover to cover read.

At only £40.00 (£28.50 on Amazon) I think this book is well worth the money.

Upside Down on Mediation

The serendipity of twitter led me recently to a blog post entitled “Family Law: Mediation and Alternative Dispute Resolution – The Role of a Barrister“. Being a family barrister and mediator this seemed like something of a “must read”. It is written by a barrister from Brisbane, Australia where there are many similarities with our own legal system and indeed our family system. But apparently some pretty big differences between our approaches to mediation and our understanding of its benefits.

Ross Bowler, the author of the blogpost, in essence appears to suggest that a client directed away from litigation is a client who has been done a disservice, who has somehow forfeited an entitlement, who will be getting a bum deal. His post uses quite absolute terminology which, coming from a lawyer, one must assume to be deliberate:

Any attempt to compromise family law litigation prior to that complete preparation being undertaken, including a comprehensive advice from and conference with the barrister, must:
•    Necessarily deny the client the opportunity to be fully informed about their matter; and
•    Colour any compromise accordingly. [Bold my emphasis]

No ifs and buts there then.

So before we advise our clients that maybe they might want to think about ways of avoiding a court based bun fight we have to get them fully prepped and trial ready, and lighten their pockets before they do something daft like donate their “entitlement” to the other side? Uh….huh…

Bowler concludes:

Given the impact such a decision can have on your relationship with your children and/or your personal property, would you want to compromise your family law rights without being fully informed?

Well, when you put it like that…

For me, this is putting the frighteners on consumers of legal services, and it wholly omits mention of the counterbalance to the risks of ADR, which is the risk associated with litigation – of which it is a core responsibility of counsel to advise (and I cannot imagine this does not apply down under).

The blogpost is unfortunate for two reasons: because it creates the impression of being a hard sell for legal services that is reliant upon fear rather than informed choice, and because it misunderestimates (as they say) the potential benefits of ADR for those involved in family disputes.

In fact, contrary to the suggestion made by Mr Bowler, mediation can have substantial financial advantages when undertaken early on in proceedings – because if successful (and it often is) legal costs are likely to be significantly reduced. Although mediation can be undertaken at any stage, the later it takes place the greater the previously incurred legal costs are likely to be, and the more marginal the financial advantage. This of course applies to any type of ADR and to traditional settlement within litigation (correspondence, door of court negotiation etc).

There are also equivalent non-monetary advantages to early consideration of mediation in family disputes – the parties’ positions have hopefully not yet become (so) entrenched, any impact on the children of the polarising effect of legal proceedings is likely to be more minimal, and the parties are likely to be able (if successful) to reduce the significant emotional cost to all family members of ongoing conflict.

Mediation is not right for everyone, nor is always successful. And a failed mediation has obvious downsides (increased cost, delay, enhanced animosity). But for sure litigation is a less than ideal way of sorting out your disagreements with your ex. So ADR bears consideration even if it is ruled out. So I for one am anxious about material that sends out the message that mediation is for suckers. One could just as easily say that litigation is for suckers (although I would say neither).

And as for the notion that you might give up some legal entitlement by mediating – well you might, but never forget that in a discretionary jurisdiction like family law “legal entitlement” is a difficult thing for even experienced lawyers to correctly identify even after the “comprehensive advice and a conference” that is prescribed here. Perhaps it is not so to the same extent in Australia, but here, it’s a judgment call – for the judge, for the legal advisors, for the parties. And ultimately only the client can decide whether they want to take the risk of going into battle in court (with all the associated emotional and financial cost) or whether they want to work out a liveable solution with known risk and limited cost. And the lawyer’s role in all that is to enable the client to make informed decisions about the route they take at every junction.

Because crucially of course, what Mr Bowler fails to realise is that mediation operates not only in the shadow of the law, but in parallel with expert and independent legal advice. All parties entering mediation are encouraged to check out their proposals with their own lawyer before signing on the dotted line. The proposition in Bowler’s blogpost that parties entering into mediated agreements are ill informed is misplaced. Mediation is not a substitute for legal advice, it is a complement to it.

So who is to say that an agreement entered into through mediation which is in accord with the client’s objectives and priorities, and which may or may not value their emotional wellbeing over the strict legal entitlement, is somehow unfair or unsatisfactory? Not me. The law may be our thing, but ultimately it’s their life.

 

NB This blogpost is not about the legal system in Australia, it is a comment on how the remarks in Mr Bowler’s blogpost apply to the situation here in Pomland. I of course acknowledge that on one level such comment is slightly unfair, since the original blogpost no doubt was never intended to apply to foreign jurisdictions.

Unacceptable Delay

As we move into June I am reminded of a letter I wrote to Jonathan Djanogly on 8 June last year, which has so far gone unacknowledged. It read:

Dear Mr Djanogly,

Family Courts without a Lawyer – A Handbook for Litigants in Person

I am pleased to enclose with this letter a copy of my recently published book, the subject matter of which I hope you will find of interest.

I am a family barrister, working daily with families experiencing relationship breakdown and working through its consequences. As such, I am aware of the practical, legal and emotional complexities that such cases can often involve.

You will see from my book that I am supportive of attempts to divert separated couples from the court arena, but I know from experience that mediation and other forms of ADR will not work in a core of cases. Those that cannot be successfully resolved by mediation or agreement will, by their very nature, be more likely to be precisely the kind of disputes that would be most efficiently and most fairly dealt with through the support and guidance of competent legal specialists.

A high proportion of my clients have within their own personal history or within their immediate family a background of alcohol or substance abuse, domestic abuse or dysfunctional family relationships, learning disabilities or mental health problems or neglectful or abusive childhood experiences that have affected their adult functioning. I am very concerned about the prospect of many individuals like those I represent having to deal with their family difficulties in future without the benefit of skilled legal advice and representation.

I have been so concerned about the potential injustices that may be caused to parents and to their children in the absence of competent legal advice and representation for family cases that I have written this book. A miscarriage of justice for a parent may have a lifelong impact on the children, indeed it may have intergenerational consequences (with all the associated cost to the public purse).

Whilst I hope that my book will ameliorate some of the difficulties faced by Litigants in Person, and that it will help to reduce the disadvantages faced by them, I do not think that it is an adequate substitute for legal advice and representation, nor do I think that in itself tools such as my book can be a proxy for the Government fulfilling its duty to provide access to justice. Many of my clients have very low levels of educational attainment, struggle with literacy or language and may struggle to cope because of poor mental health or stress. My book would not help them. It will help a limited number of reasonably educated, emotionally stable individuals to lessen (but not remove) the obstacles they face in the event that they find themselves with no alternative but to ask the court for help.

I hope that you and colleagues at the Ministry of Justice will reflect upon the contents of my book and the quantity of information contained in it: it merely skims the surface of family law and the operation of the family courts. Bearing in mind the sheer scale of the task faced by Litigants in Person in trying to grapple with these issues whilst in the midst of the most traumatic time of their lives, do you really believe that access to justice can be preserved in the event that the Government implements the proposals contained in the Legal Aid Green Paper?

I should be happy to hear any feedback on the publication or in respect of my comments.

Yours etc.

Now I know that Mr Djanogly thinks that 52 weeks is an unacceptably long delay, because he is always telling us so. I am therefore confident that by close of business on Friday his response will be with me (along with his bulk order).

ROFL, as they say.