Working with mediators
As family practitioners are aware it is now compulsory for the majority of clients to attempt to mediate prior to issuing a court application. Most practitioners will encourage clients away from the court system and will suggest that the clients mediate, use the collaborative law process, follow the more traditional solicitor negotiation route, or potentially use a hybrid of these three processes.
Given this mediators and lawyers should be working closely together more than ever in order to provide clients with the best possible outcomes for them. In both discussions with lawyers, and in a recent poll I did on a live webinar, I have been struck by how little communication there can be between lawyers and mediators. If a client is to get the best from the mediation process, it is essential that they are equipped for it: a lawyer must therefore be familiar with the mediator's process and a close relationship between the lawyer and the mediator can ensure that a client gets the best outcome from the mediation/legal process. This also benefits the lawyer and the mediator, as a shared discussion of their differing approaches can help both to improve their practice. I am Pod liaison officer of a multi-disciplinary Pod that includes lawyers, mediators, counsellors and family consultants. We all agree that the perspectives of the different practitioners greatly enrich the discussions that we have.
Practices and approaches will vary between lawyers and mediators, so it's important to get to know how the lawyers and mediators you refer to work, but here are some of my tips for lawyers for preparing clients for mediation:
Being in the same room
This can be a huge concern for some clients and it's a discussion that the lawyer should have at an early stage. The mediator should be made aware of the concerns so that they can discuss these with the client in the initial meeting (which should take place separately). In all cases mediators will assess whether mediation is suitable, or whether there are concerns about the physical safety, emotional well-being, or decision making capacity, of either or both clients. Sometimes it may be possible to mediate with safeguards such as using shuttle mediation, or allowing the vulnerable party to leave mediation first. Lawyers can also be present at mediation meetings.
What happens in the mediation room?
Mediators use a whole variety of techniques to help encourage discussion. One of the key things about mediation is that the mediator doesn't just help clients talk to each other, they also help them to listen to each other. People who are anxious, upset and stressed do not listen. Their involuntary ‘fight or flight’ system takes over. Mediators will repeat and emphasise what has been said. They also use the flip chart as a visual aid. This won't just include information about exploring options, it will include other points that have been discussed and need to be reinforced. They may use a photo of the children to encourage both parties to focus on what is most important to stop them becoming bogged down in irrelevant tit-for-tat. They will acknowledge the difficulties that each client has expressed and will mutualise those difficulties to help the clients recognise that they are each facing a difficult situation. Being able to give clients an idea of what will happen in mediation, and how they might benefit from that, is helpful when making the referral.
Providing financial information
It is helpful to explain this requirement to clients at an early stage so that they have the chance to start to gather together the necessary information. A mediator can co-ordinate the exchanging of financial information. They will discuss the best way of achieving this with the clients and it can be done in the traditional Form E, or by way of each party providing documents. The mediator will then help the clients to use the documents to build up a picture of their financial assets. This is likely to include further examination of that information to see whether there is anything missing. The mediator will want to see comprehensive financial information which should include all the usual documents and valuations. They may suggest that clients take legal or financial advice on certain aspects of the information. This is often a cause for concern for lawyers who want to obviously ensure that clients who have attended mediation have had access to full financial information. If you're not sure about what information the mediators you use request, then ask them.
Mediation works best when it is coupled with legal advice. It is very difficult for clients to quickly access legal advice on a specific point if the lawyer is not kept appraised of what is happening in mediation. In another poll I did during an online webinar, I was amazed by how many lawyers say that they hear very little from the mediator during the mediation. Clients can be worried about the mediator keeping their lawyers in the loop because they are concerned that it will cost them money. Lawyers have the option here to agree not to charge for emails/quick phone calls from the mediator to ensure that they are kept updated. Clearly lawyers will charge for offering advice to clients between mediation sessions but it can be helpful if this is offered for a fixed price so the client has certainty about costs. The client should be aware, going into mediation, of what ongoing costs they will incur, what service they will receive, and what benefit that will have for them.
Concluding the mediation
No lawyer wants to be in that difficult situation of receiving a memorandum of understanding at the end of the mediation, discovering that it is unworkable, and having to explain this to a client who has invested time, money, effort and emotion in the mediation process. If lawyers are kept in the picture during the mediation then it is easier for them to spot problems at an earlier stage. This is another benefit to the client of having their lawyer kept involved in the discussions in mediation. Ultimately a mediator should not produce a memorandum of understanding that is unworkable for the clients. If a judge would not approve the proposals by way of a consent order, then the mediator should be feeding this back to the clients and encouraging further discussion.
Mediation works best when the lawyer and the mediator communicate well and understand how each other work. They also need to keep each other up to date with developments and discussions. Ensuring that the clients have a good understanding of what happens in mediation, and how they can get the best from the process is the key to this. If clients achieve the best possible outcome then they are likely to recommend both their lawyer and the mediator.