It’s always sad when mediators and lawyers get all “adversarial” about their respective claim to being the best at helping families in conflict. The truth is neither has the monopoly.
I had an exchange on twitter this week with an ex-lawyer mediator who goes by the deliciously un-mediatory and ever-so-slightly-adversarial twitter handle of @mediationnotlaw, which has prompted this post. Sadly, he’s blocking me now, and seems to have deleted some of the tweets that formed a key part of the discussion (mainly those making sweeping assertions about the legal profession – the screenshot here is a reply to one such deleted tweet) but I had already resolved to write this post before realising that, so I’ll press on.
I may be an ex-mediator (which is not the same as an anti-mediator), but I am channeling all my mediator skills when I write this blog post. I have many criticisms of how mediation IS – of the rigour and cost of its training, of the effectiveness of its regulation and of its business model and of its suitability for all cases – but those are all things about the *state* of mediation not the principle (or the people). I emphatically recognise mediation as a valuable and effective solution for many families (although not all). There is a place for both law and for mediation. We do not need to set ourselves up in opposition.
Indeed, I recall from my mediator training, in between the torture of neuro-linguistic programming and egg-sucking flipchartery (lawyers are allergic to flipcharts, this is our greatest weakness), we were told that mediation worked best in the “shadow of the law”. This is so crucial. People reach consensual resolution (in or out of court) on the basis of an informed understanding of their options, the risks and the alternatives. The two options of mediation and law are symbiotic not antipathetic (and of course there are many others such as arbitration).
I want to give a small illustration of my perspective of the current climate in which mediation operates before I go on. I recently dealt with a FHDRA at a court running an in court mediation scheme. I won’t give detail but suffice to say that the “voluntariness” of the mediation involved us being told the court had decided we were going to mediate, and the confidentiality of the mediation was entirely breached when the mediator told the court exactly what had transpired without the consent or prior notification of the parties. That is two of the pillars of mediation ridden roughshod over. This I hope is an aberration, but it is for me indicative of how much we’ve lost our way with our evangelism about the promotion of mediation as “the answer”. Mediation is brilliant for some and disastrous for others.
So, back to the twitter discussion that prompted this. It began when a complaint was made about lawyer “sabotage” of a planned mediation when a previously willing candidate withdrew. It seems to me it is easy for a mediator to suspect, but difficult for a mediator to know that sabotage by a lawyer has taken place. I don’t doubt it happens (probably when clients are being advised by the sort of muppet lawyer who will set out the full details of a failed but still privileged mediation in their clients witness statement), but I do doubt that it is the norm – because most lawyers I meet DO recognise the value of mediation or at least recognise the commercial and professional imperative to assist a client to explore that option. From my perspective there are oh so many reasons why a client may decide, on reflection, to go forward or not with a mediation. It is my experience that in the current climate of mandatory-voluntary mediation, it can be underestimated how much pressure a client feels to participate in a mediation or a MIAM (which incidentally the court system seems incapable of distinguishing – some magistrates and legal advisers seem to believe the FPR allow them to compel parties to mediate). Many of my clients have been bullied into mediation – by a lawyer, by a judge or magistrate, by the rules that require them to jump through hoops. Or by fear of the alternatives, the consequences – financial or otherwise. So yes, I expect some clients do say “I’ve spoken to my lawyer and I’m not going ahead”. I think it is a leap to suggest that is down to some failure on the part of the lawyer – and is rather patronising to the grown up client.
For the record, when I am asked by a client about mediation I tell them this – exactly as I was taught at mediation training : mediation is voluntary. You don’t have to do it. Mediation is confidential (Except of course we all know it isn’t, since parties frequently refer to it in statements and evidence). Mediation is cheaper – IF IT WORKS. Mediation is quicker – IF IT WORKS. Mediation is less stressful – IF IT WORKS. But all of it depends on the client’s own assessment of whether their ex partner will genuinely participate in mediation or will use it to cause delay, to up the ante, to pressurise or abuse, to pump for information or make demands. I moderate this of course depending on the circumstances of the case – I don’t panic clients or scare them off mediation where these do not appear to be potential issues. But I set out the potential benefits and the potential downsides of mediation, tailored and based upon my knowledge of the case and the parties. Because client usually ask me directly – Can it be enforced? What if the other person decides not to stick to it? If it doesn’t work what then? I’m willing but I know they won’t be interested / give it a go – what’s the point? You can’t fudge those questions. All you can do is set out the possible outcomes. And be frank about the un-enforceabililty of mediation without a court order, which in a contact dispute is a recipe for disaster for the vulnerable parent – unless of course it works. And of course in my particular part of the system I see quite a lot of those families who went off briefly into the sunset of a mediated resolution only to find themselves catapulted back into court when one party decided they didn’t want to stick to it. So I know it is not always a happy ending.
Ultimately mediation with a person determined to manipulate the process to their own ends is not a process that is going to assist. At MIAM or intake stage such issues may not be immediately or readily apparent to the mediator – but they may well be apparent to the solicitor who has been in communication with client and opponent over some months, or to the barrister who has met both parties at court. That is not every case of course, but it is the case for some couples being encouraged to mediate a private law dispute.
I will be clear with my clients that mediation is something they should seriously consider, but that only they can decide whether to go for it. I don’t try and put them off – I try and ensure they are clear of the potential risks and benefits. So (as they say) sue me!
I reject any suggestion that lawyers routinely tell their clients what to do. We advise them, so they can make their own decisions – and as far as I recall the making of one’s own decisions is one of the four pillars of mediation. Sometimes, in moments of frustration at a client who is their own worst enemy i might *wish* I could tell them what to do – but it isn’t our job.
I will be clear with my clients that there are also risks associated with court process and that if at all possible they should avoid it (or if we are already in court as is more often the case for me as a barrister, I am usually advising them about the continuation of a court process to trial rather than the earlier settlement of it). I explain the costs, financial and emotional, the delay before a decision – the fact that the decision is not theirs and that it may be one they really do not want. I explain the risks of litigation. And I am also the sort of lawyer who will tell them when they are being stupid, bloody minded or heading for disaster. And then I let them do what they will and support them in that decision as best I can.
As you might expect some of my clients attempt mediation, some don’t. As a court based lawyer most of my clients have already been to a MIAM (or tried and failed mediation) so have a little bit of information about mediation but have chosen not to go forwards with it – or the other person has chosen not to. And it is fair to say that for a significant portion of my clients mediation is not suitable due to issue of domestic abuse. But some are (even including some involving domestic abuse). But it isn’t my job to sell mediation any more than it is to sell litigation. My job is to advise. I don’t sabotage mediation. I answer my clients questions. So yes, I expect some of my clients do go away and decide not to mediate having previously been keen – whilst some of them go away and mediate whilst previously having been skeptical or opposed.
A thread running through our twitter discussion was the old trope of the lawyer cranking up rather than resolving conflict. Perhaps that was the case when @mediationnotlaw was in practice, and no doubt in pockets it is still thought acceptable – but for most of us at the bar or in solicitors’ firms it is emphatically not what we do, and would not be accepted by our seniors or the courts – and I would support any lawyer or mediator calling out bad practice in evidenced cases. Lawyers and judges by and large recognise (and regularly state publicly) that the courts are not the best place to resolve these sorts of disputes, that families must be diverted at every opportunity – and that even within the court process resolution is to be encouraged, within safe parameters.
@mediationnotlaw says that we lawyers rarely argue the law. He prays that in aid to make a different point (that disputes aren’t about law but about communication), but what he says is true – because our role as lawyers is so much broader than arguing. Our primary function is to advise – we generally argue the law only when attempts to resolve the dispute have failed. Until that point we advise on the law, and possible solutions based upon it. Even a court based barrister like me spends only a minority of time arguing (apart from on twitter, natch). Cases are sent to mediation by lawyers (less so since legal aid was slashed). Cases are diverted from court or resolved without recourse to litigation because of lawyers. Cases resolve at the door of court or at an early stage in litigation because of lawyers. The pressure of litigation perhaps helps to focus minds. But the pressure to mediate, to avoid court – a financial and increasingly a moral pressure – is great also. And mediation may be all flipcharts and finding common ground inside the mediation room, but oh so much is going on beneath the surface that our clients tell us about afterwards.
Many lawyers can no doubt do more to improve our understanding of mediation and NCDR, our conflict resolution skills. Some mediators could do more I suspect to understand and acknowledge the value and place of lawyers as part of a system of conflict resolution. This is not the first time I have sensed an anti-lawyer tone in mediator chatter. When I mediated I found that clear legal advice was an important adjunct to mediation – it enabled clients to find the confidence to reach agreement and to resolve their disputes, whereas without advice about the legal framework or legal rights they had been unsure of their ground and struggled to reach compromise.
Conflict and a competitive dynamic between lawyers and mediators aids no one. We are all supposed to be on the same team. And the truth is all of us earn our income from famlies in conflict. It ill behoves any of us to criticise our colleagues for adopting a mercenary rather than professional ethos. We must all make our living, and the enlightened amongst us realise our reputation and businesses will be enhanced if we have happy clients whose conflicts have been resolved at the end of it.
So, I leave it here : mediation is not a solution for everyone. Law is not a solution for everyone. As I tell all my clients : court is a last resort. Even though most of my clients have reached (or think they have reached) the point of last resort, I still advocate for mediation or ADR where it seems likely to provide a practical way to resolve their dispute satisfactorily – and I will advocate that to my reluctant or ill informed opponents where necessary too. For me to adopt that approach it is neither necessary nor appropriate to pretend the mediation industry or product is perfect, any more than it is necessary or appropriate to sell mediation off the back of a slating of the legal profession as a whole.