Along with the decree absolute, consent orders are the traditional end point of any divorce settlement.
As the name implies, such orders set out what each party has agreed to, the terms on which they have consented to a financial settlement. Typically they describe precisely how you and your soon-to-be-former-spouse will divide your assets, whether money or property. They will record undertakings (formal promises to the court) that each of you are agreeing to perform – e.g. to pay certain items or to cover liabilities for tax or obtain the release of a party from a mortgage.
Normally drafting a consent order for endorsement by the family court is a job for a solicitor. Composing any kind of legal document is a skilled job, requiring precision and an appreciation of important legal principles.
But there’s a problem. As any regular reader of this blog will know, legal aid has not been available for most family law disputes for close to four years. The predictable result has been a surge in the number of ‘litigants in person’ – people unable to afford legal representation who are thereby forced to make their own way through the court process.
Meanwhile, at the same time that it slashed the legal aid budget the government began trying to push families into mediation, seeing this process as a cheap, ‘one size fits all’ alternative to the courts. Attendance at a MIAM – mediation information and assessment meeting – is, at least in theory, compulsory for anyone considering taking a family dispute to court. In practice they are still widely ignored.
Inevitably as mediation has begun to take on a greater role in the national dialogue about divorce, some have wondered whether mediators themselves should take on new roles. While some mediators are also solicitors or barristers, legal qualifications are not a requirement for the role, preventing many from carrying out such lawyerly functions as drafting consent orders for clients going through divorce – even if the mediator helped the couple reach agreement in the first place.
But what about those with legal qualifications? Should they be able to do so? According to the Family Mediation Council (FMC), the answer is ‘maybe’. Late last year it launched a public consultation on that very issue.
The consultation paper explains:
“The Family Mediation Council recently updated its Code of Practice (the Code). As part of the discussions when updating the Code, the FMC Board considered the question of whether mediators should be able to draft consent orders at the conclusion of mediations that they have conducted. The old version of the Code was silent on the point, but there has been much discussion in the mediation community recently about whether or not the drafting of consent orders by mediators is currently, or should be, allowed.”
I am sure there are solicitor-mediators rubbing their hands with glee at the prospect of being able to undertake more work in the process and provide a one stop shop for the full service. However before solicitors rush headlong into this they need to stop and think very carefully about the different roles that are undertaken by a mediator and by a legal advisor. A mediator is a neutral person who is facilitating a conversation between the two protagonists and trying to help them reach an understanding.
If they do, then the mediator will draw up a “without prejudice” record called a memorandum of understanding but it is not a binding agreement (the term “without prejudice” refers something which is “off the record” and therefore cannot be referred to in court as evidence of an agreement being reached). The parties then need to avail themselves of legal advice on that proposed agreement and if they are still happy with it, the clients can then confirm that understanding as an agreement and have the consent order prepared.
This is the safeguard that the mediation process provides to prevent one party taking unfair advantage of the other party. I have seen clients who have come out of mediation with an “understanding” but because the mediator was not able to give them specific advice, when I then discussed the pros and cons of what had been proposed, the client changed their mind and we subsequently made adjustments to the proposed settlement to create a fairer outcome. As solicitors we are there to protect our client and to highlight the pitfalls of a financial proposal. A mediator, because of their role as a neutral party will, generally speaking, not be able to do this. It is in that context that I consider it is potentially very prejudicial for a client to use a mediator to both facilitate the discussion and also draw up the paperwork. Yes, you may well be absolutely fine but as the decision to enter into a particular financial settlement may have long lasting implications for you, isn’t it worth getting a second opinion?
Read the Family Mediation Council consultation in full here.