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.