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DECEMBER NEWSLETTER

 

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MEDIATION: A Waste of Time?

Is Mediation the antidote to contentious, expensive divorces? In the light of recent criticism, some solicitors have been quick to point out that they offer mediation as an amicable way to resolve divorce settlements.

Is this really the case? Have solicitors traded in their ‘one side versus the other’ procedure for a caring approach in the light of recent publicity? Or is it just more of the same? Furthermore, how much of a real option does mediation provide for the consumer?

To get to the bottom of it, I called three different firms of solicitors specialising in divorce services in various parts of England: one in London (Ambrose Applebe), one in Essex (Terry & Co) and one in Bournemouth (Lester Aldridge). I also spoke to the family law services that provide mediation, and other, independent mediators.

 

SOLICITORS

The following attitude prevailed across the board;

I approached the above legal firms as a client seeking divorce - with a family business and an uncooperative spouse.

1) The immediate reaction was to ask questions about financial status; to find out how much there was in the ‘kitty’.

2) Mediation was not suggested unless the solicitor was prompted first. The encouragement on each occasion was that each side would be expected to hire a solicitor and begin exchanging correspondence.

3) When I inquired about the merits of mediation, I was given the following response every time:- that mediation only works if there is no dispute and both parties are committed and up front about their positions. Otherwise it was suggested that mediation would effectively be fruitless.

Three further points were made:

1) Mediation is mainly an empty hurdle for couples applying for legal aid: they have to go through mediation first.

2) Mediators cannot give legal advice, therefore there is no pressure that can be applied in the event of disputes during mediation.

3) The new collaborative law method was offered by one solicitor. This entails both solicitors and clients negotiating together round a table. If they don’t succeed in reaching agreement, the parties have to move on to other solicitors. There is a lot of work involved apparently behind the scenes (drawing up agreements/documents etc). The collaborative law method was also charged out at an hourly rate. One solicitor, who estimated an average contentious case at costs of £20,000 through the courts, said that the collaborative method can reduce this bill by 50% (which gives you some idea of the figures they had in mind).

 

INDEPENDENT MEDIATORS

The following view of the situation came from two independent mediators:

ON THE MEDIATION OPTIONS AVAILABLE:

There are different types of mediation services: family law mediation, often suggested for legal aid and low income families, which is not legally binding. The parties are always seen together. This can be a problem if one is controlling. There is no legal advice and any agreement has to be drawn up by solicitors afterwards. This can lead to problems and further legal bills.

There are solicitor mediators, who charge by the hour at standard solicitor rates and see both parties together. However this can lead to three lots of legal bills since each side still has to have their own solicitor acting for them.

There are independent mediators, who can draw up a legally binding agreement. Some solicitor work is still necessary however, as the document does need to be checked by a solicitor (two solicitors: one on each side). The two parties can be seen separately.

In the case of a solicitor who sometimes works as a mediator in a solicitors office, it is hard to show the impartiality and credibility an independent mediator can offer.

ON COLLABORATIVE LAW:

Collaborative law is obviously preferred by solicitors as it pays them the same rate - but discussions are around a table not by letter.

It does not necessarily replace an adversarial approach with a co-opérative one and can be just as expensive as traditional litigation.

ON THE PROBLEMS WHICH CAN ARISE DURING MEDIATION:

Mediators never give advice only information, as it is for clients to make decisions based on their situation, not the mediator who must remain impartial. In terms of legal advice and sorting things out themselves, often there are so few options due to financial constraints. Also without an impartial médiator, one person can impose their will or even bully the other. In these situations only an experienced mediator can help.

 

DIVORCE SOLICITOR TRAP VIEW

While it appears that mediation is not being promoted in any real sense by legal firms, it does not yet offer a complete alternative to using solicitors.

One worrying factor is that solicitor firms are offering mediation services at an hourly rate; mediation as a concept thus poses further threats to the consumer. Taking the mediation route to avoid disputes during divorce and financial settlement may provide a solution, but it may also just provide a ‘round the back’ route into solicitor mire. This is a highly unregulated area and although mediation in any spoken form has to be better than disputes by correspondence, we advise caution…

In order to prevent couples from falling victim to their own weaknesses and emotional trauma, the commercial side of the divorce and settlement process should be disabled. Making money out of other people’s distress should be relegated to the past. This could be done by imposing fixed price structures on legal services for divorce and settlement. Protection from exploitation at this time needs to become a major priority.

If you have a view on mediation, please send your comments to:

info@divorce-solicitor-trap.co.uk or use our GENERAL ENQUIRIES page