Consultation by the FMC – Should mediators draft consent orders?

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…..

3 thoughts on “Consultation by the FMC – Should mediators draft consent orders?

  1. Personally I am of the opinion that mediators shouldn’t be involved in family law cases and are just another cash making machine. I also am of the opinion that mediation is just another delay in sorting out contact.
    Many mediators claim that mediation is cheaper than going to court, well yes it is if you are eligible for legal aid for this matter. However, if not, then representing yourself in family court is by far the cheaper option. Many simply cannot afford the £80 or so an hour many charge.
    Also, in regards to drafting consent orders, since when are mediators legally trained? If they are to draft consent orders, then why not see that some Mckenzie friends are too, not forgetting that many Mckenzies do undertake CPD each year.
    Personally, I am of the opinion that mediation, although part of the process in going to family court, should be ditched at the very first hurdle.

  2. My two-penneth worth. Mediators should not draft consent orders – even the legally trained ones.
    1. Situation one: solicitor-mediators drew up agreement. Had not thought about all practicalities of drafting such as terms around spousal maintenance order. Of course back in mediation they could fix that. But they also had not paid attention to the big red flag of the husband’s potential bankruptcy. Client came to me for advice, I said reject it, got counsel’s advice and he said I would have been negligent if I had not spotted it. Of course, the solicitor-mediators were at fault here, and the other side were upset when I advised my client against the agreement that they had put so much effort into. But imagine I had not been involved. Are judges likely to pick up such issues when they don’t have a detailed knowledge of the case and are simply doing box work? Of course the mediators were at fault here – but I do wonder if coming from the direction of mediation – seeking agreement – they don’t think as much about the worst case scenarios as those of us who are employed to do just that do. Drafting would require mediators to step aside from the fact of agreement to consider the reality of implementation and enforcement.
    2. Local non-solicitor mediators are apparently very hostile to having training on the law. Even their trustee, a family barrister, feels her attempts to train them are rejected. The mediators see their job as reaching agreement but the idea that in family law agreement between the parties is not the end of the matter is alien to them (and alien to all non-family law lawyers too).
    3. There are ways to draft and there are ways to draft. How would a neutral third party determine whether or not to include (eg) a s28(1) bar on extending periodical payments? The answer is that they could resolve this in further mediation – but the mediator would have to approach his or her role differently to the role and approach taken by many non-legally qualified family mediators. So it’s not that they could not do it, but they would require a detailed knowledge of family law and a change in how they saw themselves.
    These comments apply really to the financial remedy side of things.

  3. NZ has been using mediators as a compulsory step prior to going to court for a few years in sorting out arrangements for children. The mediators are lawyers. The parents can have a support person or Mckenzie friend in with them but not a lawyer. In the mediation session a parenting agreement can be drawn up signed and gets sent to the court for approval prior to being made into a legally binding parenting order.
    I’ve sat in on a few of these and mostly they’ve been pretty good a skillfully presentedand reasonable arrangments have resulted.
    Not always though and these are the problems I’ve also seen.
    Mediators unable to keep things on track (they’re limited to 6 hours) and allowing way too much time for parties to complain about ‘feelings’ past ‘hurt’ he said she said etc. (Never by anyone I’ve supported I should point out – my focus as a Mc friend has always been to keep my party on track for the future care of the child(ren)).
    Badly written, unworkable parenting plans. My crucial test is that there needs to be a clear cut default position. Each parent should be able to look at their plan and work out a full year ahead what the arrangments are. (Every plan has the rider, these arrangement may be changed on a temporary basis with the agreement of both parents). I don’t just blame the mediators – the worst parent plan I’ve seen was written by a judge with 30 years experience.
    Mediators looking for ‘notches on their belt’. I was in one session where the requests from the other party were totally unreasonable. Once the mediator realised there wasn’t going to be an agreement coming easily out of the session he became very onesided, manipulative and unprofessional against the guy I was supporting. I felt he was just trying to get a result, any result not a reasonable working result. (This case went to court, it got thrown out in minutes and the end result was what the guy I was supporting had asked for in the first place.)

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