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If you’re a high street family lawyer, chances are you’re becoming blithely accustomed to yet another local firm launching a range of fixed fee divorce packages. Putting aside that some of these packages may be light on advice and heavy on form filling, there is no doubt that innovation is taking hold. Recent changes to public funding are sweeping away the polarisation of family law services that saw disparities in levels of advice available to clients. No one paid a great deal of attention to the missing middle: tens of thousands of separating families on average incomes effectively priced out of the market for family law services. This could be about to change, not least because the reduction in the availability of legal aid has seen the vagaries of market forces replace the relative sure-footedness of public subsidy.
In response, impacted lawyers are busy discounting hourly rates and fixing fees in a desperate bid to make themselves affordable to the same clients who can no longer pick them up on legal aid. An unintended consequence is that referrals to legal aid family mediators have fallen off a cliff while those who were supposed to mediate are heading off to court – often unrepresented – to throw more sand in the wheels of the judiciary. While the Ministry of Justice sits on its hands, this farce-like situation points to a commercial opportunity that more and more family law departments are cottoning on to.
A different way?
What if there existed a way of earning around £2,500 a time for helping an average income divorcing client resolve contested issues relating to finances and child arrangements? And what if it didn't require you to negotiate with another lawyer or write any formal correspondence? In fact, what if it only required you to advise your client, draft the petition and draft the consent order?
Granted a steady flow of cases worth £2,500 might not make you 'partner of the month'. But look around: could your colleague(s) with three to five years PQE be doing a little more to swell the departmental coffers? Moreover, twenty such cases spread over a year is equal in value to a couple of highly consuming ones going to final hearing. And just think how many client referrals might flow from 20 cases versus two.
So where might these fees come from? Well, they come from extending your department’s expertise to supporting average income separating families opting for mediation. Yes, referring to mediation could actually be a money-spinner. Do not adjust your set. The total cost of hiring a lawyer and a mediator magically brings the cost of dispute resolution within reach of average income clients while still meeting their demand for legal advice.
But before referring your new stable of average salary clients to your preferred mediation service, think again. This is because most lawyer referrals to mediation do not result in err… mediation. Alas, it doesn't matter if your preferred mediator has a 99% agreement rate because your client’s ex – the respondent (party B) – may have other ideas about attending.
This may come as no surprise. Just put yourself in party B’s shoes for five seconds. They take an unsolicited phone call from someone called a 'mediator', whatever that means. It takes party B a nanosecond to realise the call is the result of their ex – or worse their ex’s lawyer – and from their perspective, deciding what’s best for the both of them. Moreover, this mediator type is asking for £80 plus Vat 'for a chat' otherwise known as a MIAM.
Is it is any wonder that in 2012/13 it required over 75,000 referrals to mediation to generate just 13,500 mediation starts! In the context of earning fees out of mediation this simply won’t do. Remember, the average salary client can’t fund the alternative of paying £200 plus an hour to keep the parties out of court.
Which is why we’re rolling out a dedicated lawyer-to-lawyer mediation conversion service made up of senior family solicitors and mediators, ready to work in structured partnership with your department. We believe we have a much better way of meeting the needs of party B, which means your client is more likely to begin mediation. Party B’s journey now begins with a fixed fee lawyer and ends with a fixed fee lawyer. Mediation is something that happens in the middle with legal advice available throughout. It might not be a panacea but at least it offers one way of extending party B the power, ownership and choice that led party A to decide upon mediation in the first place.
Marc Lopatin is a trained mediator and the founder of LawyerSupportedMediation.com, a lawyer-to-lawyer service aiming to bring the cost of dispute resolution to within reach of average income private clients.
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