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.