The cost of mediating, or not

Mediation|September 19th 2018

Back in the 1990s before mediation was fashionable I signed up on a course to train as a mediator. However, I then had a change of heart, as I did not think that the potential rewards from working as a mediator justified the substantial expense of training that my firm would incur. How wrong I was.

Last Friday a headline in The Times read:

“Couple still battling over children despite spending £50k on mediation”

I had to re-read it. Fifty thousand pounds on mediation? How could that be? I read on…

The report tells us that the couple actually spent “more than £50,000 on mediation services”, according to Mr Justice Baker, who was hearing the case. It goes on to say that the “pair had failed to resolve their differences despite more than 100 hours of meetings involving a professional mediator.”

Assuming the £50,000 figure relates just to the mediator’s fees, that means they were charging around £500 an hour. That may sound a lot, but some lawyers charge such sums, and the mediator may have been a lawyer as well – many mediators are.

I’m not so much interested in the amount of the fees – as Mr Justice Baker indicated, this couple had enough money to spend as much as they want on their “bitterly fought battle” – as the amount of time spent in mediation. Surely, it became obvious long before 100 hours were up that the mediation was not going to be successful?

Unfortunately, the report is very light on detail, and we will almost certainly never know what happened in the mediation, or why.

What we do know, however, was that the couple

“were arguing over the amount of time their sons should spend with each of them and that each parent had made allegations about the behaviour of the other.”

Perhaps pointedly, the report then tells us that despite the long-running argument the boys actually spend much of their time being cared for by no fewer than four nannies, rather than by either of the parents themselves.

Mediation is often promoted as “a better way” to resolve family disputes, rather than go through contested court proceedings. Agree on things between yourselves and avoid all that bitterness, we all tell our clients. But spending more than 100 hours arguing in mediation is hardly a better way.

OK, I don’t want to criticise anyone involved in this particular case. I don’t know the facts, and it may be that there are good reasons why so much time was spent in mediation. And they may not just have been discussing arrangements for their children. However, there are two points I do want to make.

Firstly, the case seems to be an advert for the idea of the new President of the Family Division Lord Justice McFarlane that judges should indicate to parents at the outset of cases what ‘what normal looks like’ in a contact case. Surely, if this couple had been told by a judge at the outset what the court would be likely to order if they could not agree arrangements for their children then they wouldn’t have spent so long (and so much) arguing the matter? Or am I just being too optimistic? It is, of course, wise to heed the words of a judge, but not everyone behaves wisely when dealing with such an emotive issue as to where and with whom their children should spend their time. Still, I’m sure some at least would listen, thereby reducing the number of protracted arguments between parents (whether in court or mediation).

My second point is that I hope that the headline does not put people off of mediation. Mediation is often promoted as a cheaper alternative to court, but anyone seeing such a headline may have second thoughts. Mediation is not appropriate in all cases, but it certainly does have a place in the ‘toolbox’ of ways of resolving family disputes and is something that the courts (and the rules) encourage. Anyone involved in a family dispute would be foolish not to at least give it some consideration and, yes, it may actually save them a lot of money.

To return to the case, I will end on the positive note that the report ended on:

“They are both lucky people in many ways, not least to have two wonderful sons,” Mr Justice Baker said. “I urge them to think and reflect.”

If you want more information about mediation see here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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