Mediation: the importance of legal qualifications

Stowe Family Law|June 30th 2014

I enjoyed an extremely agreeable lunch on Saturday in the heart of the Yorkshire Dales. My husband and I were guests of the barrister set Broadway House Chambers, who were celebrating the 40years in practice achieved by one of their most senior members. He happens to not only be one of the most respected but also one of the best family lawyers in the country. There was a great turn out.

Martin Wood (fortunately for three of our offices) is based in Yorkshire. Trained by a former Lord Chief Justice of England and Wales, he is always unflappable, calm, perceptive, polite and a brilliant orator. He is one of the best negotiators I have ever seen. We have worked together for much of those 40 years and I can honestly say we have always had a great result with him. It was a pleasure to be invited to share in the celebrations and mix with the great and good, including some of the most senior members of the Yorkshire judiciary. It was the most hale and hearty of Yorkshire hospitality. We listened to a brass band hired especially for the occasion, whilst tucking into some fantastic homemade Dales fare, finishing off with great slabs of homemade cake – after salmon and roast beef followed by huge truckles of Wensleydale cheese and a dessert of meringues, strawberries and cream!

I was sitting next to a lady during the lunch who at first I thought was a lawyer but then it emerged that she was in fact a mediator. She told me how she mediates all types of family law cases, including finances. When I asked what family law training she had undertaken in order to do this type of work, she said she hadn’t done any, just mediation training. She plays no part in the negotiations, save helping couples to reach agreement between themselves.

‘But how do you know what you’re dealing with is right?’ I asked. I can’t pretend it was the delicious champagne that caused me to get wound up, because I was driving and had had none. It was the assumption that anyone can do it that got me. Anyone at all – legal qualifications just aren’t necessary. It seems, in common with all the other non-lawyer mediators I have come across, that her ‘get out clause’ lay in the fact that she was not involved in ascertaining the detail, only in assisting couples to reach agreement. But then I realised there was more to the situation.

I asked how she deals with pensions. She told me if it’s a police pension she gets an actuary because she knows they’re always wrong. Are they? But she conceded she wouldn’t know what to look for generally or how to check whether the figures are accurate or not. She doesn’t know the legal parameters for settlement, or how to structure one, for example, to fit in with the parties’ reasonable needs. She doesn’t know what courts might do in a given situation and from what I was picking up, it didn’t appear to matter. As long as they reach agreement, then it’s ‘job done’. But as we lawyers know, the situation may in fact be nowhere near job done at that stage.

I’ve been wondering since my conversation  if I would ever mediate a civil litigation dispute. I have become so specialist and my civil litigation days are long since over. Would the fact that I know next to nothing of current law stop me from presiding over a mediation involving a lot of money, hoping the answers will come out right as long as they reach agreement?

I wouldn’t do it. But mediators without legal qualifications simply argue that it doesn’t matter. Back in February, the Law Commission published a report (one which I discussed here last week). This addressed the issue of unqualified family mediators, saying the non- statutory guidelines they recommend might be of assistance to them. So clearly they think non-qualified mediators could do with a steer. I think they need more than that! They need to have done the training I have, with the years of practical experience on top.

During my conversation with the nonqualified mediator, she was at pains to assure me she wouldn’t deal with a complex ancillary relief [financial settlement] case, but when I asked, she couldn’t tell me what ‘complex’ meant to her, and in fact she only reinforced my view that mediation is fundamentally flawed. So much of it proceeds on the assumption that legal expertise is irrelevant.

In a court process, or an arbitration, or a mediation such as those we offer at our firm Stowe Family Law, there are legally-qualified lawyers working as mediators and/or representing the parties. The judge and all the lawyers involved know from years of experience exactly what is needed to resolve the issues between them, and how to effect an outcome that is legally fair and just for both.

Non -qualified mediators are, in my experience, perfectly pleasant and most mean well. But the role requires more than good intentions.

I deplore the fact that the government is doing its best to push as many people as it can towards mediators, qualified or not. As long as an agreement is reached, it doesn’t matter what kind of agreement has been reached. Nor does it matter that the lives of two people will be shaped by the decisions made forever afterwards.

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  1. Judy Park says:

    The accredited mediator has a professional qualification in Family Mediation as recognised by the Legal Aid Agency and the Family Mediation Council. There is not a separate qualification to be a ‘lawyer mediator’. Let us get that straight from the outset.
    Some accredited mediators are from a legal background, some are Social Workers, CAFCASS Officers, teachers, nurses, hairdressers, judges, drama therapists, counsellors etc etc.
    When training to be a mediator we start by studying technique. We learn various skills – active listening, reframing, focusing on interests, helping generate options and hopefully the skill of bringing a case to a closure.
    The second stage of the of the mediator’s development involves a deeper understanding of how and why mediation works.
    The third stage begins with the mediator’s growing awareness of how his or her personal qualities influence the mediation process. We become deeply reflective practitioners with an awareness of the impact that the mediation, the conflict, and the parties have on her or him.
    Along side all this mediators learn about Family Law, The Matrimonial Causes Act and most importantly the effect of ongoing conflict on the children of the family.
    A mediator is not allowed the comfort of certainty in thinking about the right outcome. The mediator controls the process, the clients the content.
    Clients who enter the mediation process do so voluntarily and are free to withdraw at any time. They are encouraged to take legal advice both before and during the mediation. The lawyers usually take a back seat during mediation but are there to provide legal advice for their clients as and when needed.
    The profession of mediation has been handed a poisoned chalice by this government who see mediation as the universal panacea. Mediation is not for everyone. That is why at the compulsory MIAM meeting the mediator and the client can discuss other forms of dispute resolution – arbitration, collaborative law, the court process. The client can then make an informed choice.
    Marilyn, you have great influence with the media and the general public and I respect your position as a leading divorce lawyer but you have given the impression in your blog that the only good mediator is a lawyer mediator and the rest of us are’ non qualified’. That is not the case and I know you know that.
    It may be that lawyer mediators should be seen as a separate profession to non lawyer mediators. The clients employ a mediator and as a bonus they get a lawyer thrown in.
    Lawyer Mediators are solution focused based on ‘what the court would expect’ Non lawyer mediators must be free to ‘roam the terrain of the dispute unfettered by proscribed professional protocols’ (Robert Benjamin).
    Those lawyers who have completed their portfolio of competence for assessment by the Family Mediation Council will know that learning to be a reflective practitioner is the hardest part of the whole process. Reverting to ‘how the court would look at this’ is certainly one way of dealing with impasse, but not a very satisfying outcome for the clients or the mediator.

    • Marilyn Stowe says:

      Dear Judy
      I have the utmost respect for you as you know but my concern is simply this. I know what to look for to ensure my client is on an even playing field. I can assess a Form E, I can spot deficiencies, I can see what should be there, and isnt. I can read accounts, I can see the little foot notes and understand what they mean. Ive been doing this job for a very long time. Now, with the best will in the world you can indeed roam away with your clients, but roam with what? How do you know what you’re roaming with is indeed correct?
      And how do you know if one of the clients is being shafted if you dont know even the parameters or the myriad of possibilities that I do know?
      I think its the other way round. Clients who consult a family lawyer get a mediator thrown in as a bonus.

  2. Edel McMahon says:

    Oh Marilyn, you are such a breath of fresh air! Hear, hear. Mediators who mediate financial disputes between divorcing couples need to be legally trained. Otherwise it is like the blind leading the blind. Result? the parties emerge from mediation more lost and further apart than ever. Who has to pick up the pieces? the lawyers of course! Who gets the blame for the length of time it takes to reach a settlement? The lawyers of course. I think the judiciary have a blind spot when it comes to mediation. The costs of mediation do not appear on the Form H or Form H1. If the costs of mediation were on Forms H and H1 I think the Judiciary would wake up to the reality – mediation is very often more costly than going to lawyers who know what they are doing in the first place. As for mediators instructing actuaries – again this is the blind leading the blind. As experienced lawyers know, the letter of instruction to an actuary is very important – and I have seen some dreadful LOIs drafted by mediators. Actuaries need to be asked the right questions – not given a brief that is advantageous to one and manifestly disadvantageous to the other party. When actuaries are instructed by mediators not even that cost can appear on the Form H! I do not recommend clients to mediators who are not legally trained but some mediator firms are less than transparent with lawyers or clients about whether the person who will actually be conducting the mediation is legally trained. As for what constitutes “complex” in ancillary relief – any case where meeting the parties’ needs is a challenge based on the resources available to them. The big money cases are very often only complex because of the variety and value of assets. The real challenge in any case is to divide what was just about enough to go around one household and make it stretch to two!

  3. Trevor Goodbun says:

    I should point out I am not a lawyer, so I don’t have an axe to grind but I would say to the mediators is that if you are going to deal with the money you need to be competent and qualified to do so. To say as Marilyn’s dinner party guest did that they don’t get involved in the detail seems to me both dangerous and also to do a disservice to all mediators.
    It would also to me it seems to fail in your primary objective which I assume to be achieving an equitable settlement for both sides. If as a result of your actions one the people you are helping is “shafted” (Marilyn’s words not mine!) then you have failed.
    I am sure there are many , many mediators out there who make it clear what they can and can’t deal with , but how do a I separate you from those that say or at least imply they can deal with all aspects.
    As some of you have pointed out you have been handed a poisoned chalice by the government reforms so don’t make it worse by drinking from it, by dealing with or downplaying certain aspects such as finances.

  4. Chris Fenton says:

    I am an experienced specialist family lawyer who would be appalled if parties reached settlement based on unqualified mediation only. Are they not advised that they should each take the mediated settlement to an experienced qualified lawyer to road test its appropriateness? I always tell people that mediation, rather than being a cheap route to settlement, should involve two lawyers as well as the mediator. I have seen some frightening settlements, including one where a valuable endowment policy was not even considered. Vivat lex.

  5. Edel McMahon says:

    The problem often is that the parties emerge from mediation with a Memorandum of Understanding which is wildly out of skew with Section 25 of the MCA. It is very difficult at that stage for one party to say to another I disagree with this aspect or that without de-railing the negotiation process. It is very difficult for a party to accept any changes once they have them in print in the form of an MoU. The party who is benefitting from the skewed MoU leaves mediation believing that they are entitled as of right, because “the mediator thought it fair”. Mediators need to have the courage to say to parties at an earlier stage “this isn’t working for you” if/when that is the case, rather than continuing to flog dead horses.

  6. Caroline Dresden says:

    I absolutely agree with you Marilyn. Non legally qualified Mediators “facilitate discussion” but often know little of the underlying law in financial settlements. A decent family lawyer, collaboratively trained or not, must be a better option for divorcing clients. A mediator expressed surprise to me very recently that pensions can be shared!

    • Marilyn Stowe says:

      Hi Caroline
      Scary isn’t it? But you’re not supposed to point this out because the Keep It Out Of Court lobby really don’t like being reminded there’s more than a touch of The Emperors Clothes about non qualified mediators.

  7. Andrew Baines says:

    Looking at the content of these comments I’m reminded of the truism that it is impossible to have an academic discussion about an issue where someone’s livelihood depends on their version being correct.
    I’m also wondering whether there is an element of: “if unqualified mediators can deal with this, then what is the value of the work I do, and how do I justify those fees?”
    You cannot compare directly what is offered by mediators and what is offered by solicitors. Solicitors look after the best interests of the individual. Mediators look after the best interests of the couple. If you judge either by the other’s principles/methods/outcome you will hit an impasse. Mediators judging lawyers by mediation standards will come up with horror stories, lawyers judging mediators by legal standards will come up with horror stories.
    Taking a meta-view, it may be that we have now moved on to a place where collaborative practice is the best method of dispute resolution where both parties wish to resolve matters but there are both difficult and technical issues such as pension division. Where the parties wish to resolve matters and there are no technical issues mediation may be the most suitable. Where the parties don’t wish to resove matters but simply wish to impose their version of what is a fair solution on the other party, then lawyers may be appropriate.

  8. The rise of the lawyerless litigant By Julian Hawkhead - Marilyn Stowe Blog says:

    […] push these litigants away from the court and into alternative means of dispute resolution such as mediation is clearly not working – and that is plain for all to see. When attending county courts up […]

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