Next week is National Family Mediation Week (18 to 22 January 2020). There are lots of events organised by the Family Mediation Council to get people’s interest and understanding about mediator.
I am not a mediator but I can see the benefit in mediation. So, here are the most common questions:
What is mediation? It is a process outside of the court arena where a qualified, independent person helps a family members (couples, parents, grandparents) come to an agreement over an area of dispute.
Do I have to mediate? No, it is voluntary but why would you not try it if it could help resolve the issue that you have? Agreements that are reached between you are better, I think, because each of you have had a hand in coming to the agreement. It is fair to say that mediation does not solve all problems but it can help to resolve a significant proportion.
Do I need a solicitor? Well, the mediator will not give you legal advice. They can give you information. My view, and it is not a view held by all, is that it is better to get initial advice before you mediate and then the solicitor is in the background if you need advice in between mediation sessions to help you. When I was first a solicitor, in all cases about children between parents, there was always a session with a CAFCASS officer mediating to see if you could reach an agreement. The solicitors would be in the room but they would not take notes and they would not speak, just listen. Parents would do the talking and if they needed, they could ask for legal advice. I thought that worked really well. It also brings home the skill of listening. As my Welsh Nanna would have said, the good Lord gave us two ears and one mouth for a reason.
So, can solicitors be in a mediation? Now, here is where there is a wide range of opinion. My view is that humans are entirely too stuck on labels for things. If it works, it works and it does not matter if it is mediation, lawyer inclusive or hybrid mediation, mediation with early neutral evaluation or whatever. If you would like to be able to negotiate/discuss matters but have a solicitor in the background to listen and advise you, why not? Provided they don’t take over, why not? If you want a neutral solicitor – that neither of you have spoken to – to come into a mediation session after seeing your papers and say ‘right, if I were the judge I would do this…’ – why not? If it will get you to the point of getting an agreement and avoiding court proceedings, then all fine and dandy. Call it what you like and be as creative as you like.
What’s so wrong about court proceedings? Nothing is ‘wrong’ with them. But… but…. there is a ‘one size fits all’ process that has to be followed whether you have millions or not; there are steps and paperwork that have to be undertaken before a court hearing to help a busy judge – time is money and all that; you can have a different judge for each hearing so no continuity; even before COVID there were delays. Now there are mega delays. And FYI, financial proceedings are not a priority so…. Oh and did I mention the ‘time is money’ point. Court proceedings are expensive if you need a solicitor to help you through each bit. There is a lot of work/time there for the solicitor.
What about arbitration. Is that like mediation? No. You do have to agree to arbitrate but then the arbitrator is like a private judge who will decide your dispute. Arbitration is the BUPA. Court proceedings are the NHS, if that makes sense. I think mediation and arbitration are a match made in heaven. If you choose to arbitrate, the arbitrator can send you off to mediation to see what you can agree and then if you have a few issues left but have decided most of them, the arbitrator will decide the remaining issues and that is that. Seems like the best of both worlds to me.
If you need advice before you start mediation, contact me.