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Mediation is not a new concept for the legal profession. There are lawyer mediators who have been mediating for more than 20 years. Yet for various reasons mediation is now getting more press than it has ever had before. On 6 April 2011 a new provision was introduced, via the Family Procedure Rules 2010, that anybody applying to the court for a financial order, or an order concerning a child in private proceedings, should explore the possibility of mediation first, save for in certain exceptional circumstances. There was speculation as to whether this would lead to a large increase in the amount of mediation work. Sadly some practitioners found ways to circumvent this requirement and judges were reluctant to enforce it. It was therefore relatively easy to issue an application without the client having attended a mediation information assessment meeting (MIAMs). There is talk that the requirement will be made compulsory in the Children and Families Bill but the wording has yet to be finalised.
Getting the message through
Then there was more change involving mediation with the withdrawal of legal aid for most family matters from April 2013 but with legal aid still available(for those who are eligible) for family mediation. This means that if a client is eligible for legal aid they may find that their only avenue for resolving matters is mediation. Despite these changes I have not spoken to a single mediator who has reported an avalanche of cases. It seems the mediation message is not yet something the general public is well versed in, yet for my own part I have seen a recent rise in direct enquiries - new clients are not just coming through on referral from another lawyer. Other mediators I have spoken to seem to report a similar trend. It seems that whilst the message is not flooding through it is coming through on a drip feed.
This is good news for me as I launched my mediation practice on 1 July. I will no longer be a lawyer. I will only mediate. Professionally I anticipate this being more fulfilling but given that there has not been a substantial increase in the number of clients entering mediation it is clearly a concern. The challenge is to spread the word about mediation and my intention is to advertise in local publications to make members of the general public aware of mediation, and not simply be reliant on solicitor referrals. I consider it to be my role to raise awareness of mediation, and not just to carry out mediation. Lack of awareness is one issue holding back a wider use of mediation.
There also seems to be a reluctance to put all your eggs in one basket. I have heard lawyers raise concerns that if their clients have limited means and they put those limited resources into mediation, and it fails, then they will not have money to resolve matters in the more traditional way (or indeed collaboratively). If solicitors hold these views then those instructing them must soak up these reservations and are unlikely to pursue mediation. There are also lawyers who prefer to refer to 'not for profit' mediation organisations (where mediation is not usually carried out by lawyer mediators) in place of lawyer colleagues who are also mediators. The perception is that if you refer to a lawyer colleague they will take the work and leave you without any. Most mediators believe that each party taking at least some legal advice assists the process. So the reality is more likely to be that the work is spread around the local market, with two lawyers offering some advice and formalising an agreement, and one lawyer carrying out the mediation. This approach is not always incentivised by firms. Many firms still offer bonus structures that are based on fees earned. This means there is a personal incentive for the lawyer involved to keep as much of the work as possible to generate the greatest fee income. In some cases this may involve issuing court proceedings, which may or may not be in the client's best interests. Lawyers and the ethos of some firms would therefore seem to be another challenge faced by mediation. There are various ways that this can be tackled but changing the long held view of some lawyers is not an easy task.
There is no doubt that there is a much greater awareness of mediation than there was 10 years ago and there is clearly a concerted push by the government to move people away from the groaning court system. The general public will become increasingly aware of mediation and it will be interesting to see whether this increased awareness and change of perception impacts upon the way people approach lawyers and mediators following a separation.
Louisa Whitney is a mediator at LKW Family Mediation and a freelance legal writer and blogger
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