This is a guest post by Tracy Allison, an Accredited Family Mediator (FMA), from West Yorkshire.
The Family Mediation Council has consulted all bodies conducting mediation on whether, contrary to the present rules governing mediators, we should be allowed to draft consent orders.
Mediators are governed by those rules whatever our professional background. I will say my background is a lawyer but I now only practice as a mediator through my own independent mediation service.
For those who are lawyers there is now SRA guidance that says that one mediator who has mediated between a couple can draft a consent order. The Law Society's view is that mediators who possess the expertise to draft a legally compliant consent order should do so subject to effective rules on good practice being put in place;
- The parties consent and understand what the mediator can and cannot do;
- The status of any document produced is clear;
- The importance of taking legal advice is emphasised as are the risks of not doing so;
- The court is made aware that the consent order has been drafted without the parties receiving legal advice (if that is the case);
- No Mediator should be obliged to draft a consent order.
When you look at the responses by the governing bodies to the consultation you can see the Law Society and Resolution are in support of mediators drafting consent orders. The Family Mediation Association and National Family Mediation are opposed. I am unsure as to the College of mediators view.
I understand the drivers for change
- Gaps in service left by LASPO and the redefined Family Justice System.
- Unregulated and non-professional McKenzie friends.
- Concerns of overworked District Judges and presently the additional work involved in perfecting applications on behalf of LiPs.
- The academic arguments of Maclean and Eekelaar that mediations do not necessarily involve a 'legal dispute' and that mediators do and should, give advice.
- Perception that mediators do not provide a complete, professional service (driven by the Call the Mediator programmes and elsewhere) and most importantly
- The needs of clients for a single service which provides what they need at a reasonable cost.
Do these justify dramatically changing what we do?
Another experienced mediator said : “Are the questions we need to ask ourselves 'What do our clients need from us and how can we best provide it?’ and not, “What are we able to do for our clients?”'
Resolution's response to the consultation starts with 'It remains our position that effective symbiotic partnerships between mediators and solicitors are necessary and produce lasting, effective, implemented, mediated settlements.'
So do we already have the best model with mediators offering the negotiation service and solicitors implementing the agreement reached and providing specific legal advice? I believe solicitors feel at present they are happy to refer work to mediators because they will receive the drafting and advice work back. Can we work in symbiotic partnership if mediators can do both or a solicitor and mediation practice can offer an 'all in' service and no conflict arises to them undertaking mediation and giving legal advice?
I'm sure if we asked clients they would want a single service at a reasonable cost but what are they actually going to get if it is one service?
- They will be asked to sign a retainer / disclaimer stating what the mediator can do and cannot do. Are their legal rights ‘fully’ protected?
- They will still be encouraged to take legal advice (so additional costs possibly) and
- will have a consent order (legally privileged or open- not clear on this) which will include a statement to illustrate to the court that no legal advice has been given (if not given). The result possibly is the court will list an approval hearing where both have to attend court so the judge can be satisfied it is fair, both understand the legal implications and discuss what legal advice they have been given. What if the judge does not approve the order?
For me - we have a good model which protects clients legal rights in that we encourage them to obtain specific legal advice. Solicitors and Mediators can work in partnership and most importantly clients are in the best position to obtain a legally binding order. I know some of you will say but what about those who do not instruct a solicitor? In answer I would say we need to look at why that is? What can solicitors and mediators do? In changing the rules we are not creating something better.
What I struggle with most is our core principles that clients are in control / they take responsibility for the outcome and whether this can be preserved if the mediator ultimately is responsible for the outcome if they draft the consent order.
I will take a few minutes to explain my view about draft orders being prepared in Children Act cases. Some may say I contradict myself about core principles here. I do agree as mediators we help parents create good parenting plans and sometimes some parents chose to have those arrangements implemented into a court order. In my experience this is rare because many wish to resolve outside of court and understand a court order is a piece of paper with a court stamp on it that the police do not police. In this case I explain to both parents they can choose to waive legal privilege and show the judge the memorandum of understanding setting out the arrangements. I know some mediators are prepared to cut and paste these arrangements into a draft order so parents can use and attach to a C100 form. I suppose the question I ask - is this against core principles if the mediators create an open document to be used by the parents? Although I do not draft an order I choose to set out their plans in detail in the memorandum. I have to say I do not feel as opposed to this as drafting financial consent orders.
What is not being discussed in mediators drafting is the ramifications in possible litigation, increase in professional indemnity insurance premiums and frictions / competitive market it will create between solicitors and mediators.
All bodies talk about mediators not being compelled to do this, but what is the Legal Aid Agency going to want to do as a cost cutting exercise (help with mediation funding springs to mind) if rules are changed? Also in a competitive market can services afford not to offer such a service?
Results of the consultation will make interesting reading.....