The role of the lawyer in the mediation process

Alice Scambler, Partner in the Family Law Department of Thomas Mansfield Solicitors, featured in the May/June issue of The Review magazine published by a community of family justice professionals, Resolution. Alice offers an overview of the workshop “The role of the lawyer in the mediation process” that took place at the National Conference 2021. Members of Resolution can read Alice’s article on page 18 of issue 212. Full article can also be found below.

The role of the lawyer in the mediation process

As family lawyers, we are used to referring parties to mediation, but it is rare for us to have insight into what actually goes on at those sessions and the importance of the conversations that take place there. Mary Raymont and Margaret Kelly-Edwards took the participants of this workshop, “The role of the lawyer in the mediation process”, swiftly into the world of role play, only too familiar to those who are qualified as mediators. They demonstrated an “options meeting”, giving examples of responses to the most frequently asked questions and expressing the key principles of mediation with emphasis on the facilitation which is at the core of the process and the non-directive approach.

It is fair for lawyers used to advising on positions and likely outcomes at court to wonder how they can support this apparently contradictory approach where no legal advice is given. The key guidance from the mediators for solicitors was thus as follows:

  • Mediation is there to be used – A MIAM is not just a form to be signed on the route to court. Mediation is designed to reach solutions. Of course, it is not appropriate in every case, and it may not always result in agreement, but it is worth a try. Mediation can come in at any stage, and it is vastly underselling it to write it off once the Form A/C100 is issued.
  • Avoid positioning and references to the “opponent” – Clients come to lawyers with a story, but it is only one side of the bigger picture. There is a key difference between advising on possible outcomes and polarising positions even further.
  • Documents are not necessarily helpful – Documents can be disclosed in mediation with the permission of both parties but leave of the court is not required. It can be useful to have sight of the most recent Order but it is not usually helpful to see other documents. This is particularly so with the parties’ statements, which remind them of their story or “position”. A fresh conversation is what parties gain from mediation, and the most practical advice for the lawyers is to provide the mediator with a list of available documents if needed.
  • MIAMs are confidential – The mediator does not have to – and in fact, must not – explain their reasons for reaching a conclusion that mediation is inappropriate. Such decision will not be taken lightly anyway.

Processes are changing all the time and solicitors continue to look to the commercial world to improve the scope of available options. These now include:

  1. Hybrid mediation – Where the lawyers are in attendance. It is crucial to involve solicitors at the right stage and to use this option only in appropriate cases.
  2. The certainty project – Parties commit to resolving matters, either at mediation or using arbitration, within a set timeframe. The arbitrator and mediator cannot be the same person as the latter will have had exposure to the without prejudice conversations.
  3. Early neutral evaluation – Usually used for discrete issues. An appointed evaluator will hear both parties’ competing positions before giving an early neutral evaluation of the likely outcome of the matter if it were heard in court.
  4. Collaborative law – Around since 2004, this still provides a useful alternative as managed by collaboratively trained lawyers.
  5. Arbitration – The benefits include selecting your “judge” and choosing timeframes.
  6. Mediators drafting consent orders – There is judicial guidance to support this, but it remains an individual decision. This concept even polarised opinions of a virtual room full of mediators as every specialist has their own style, processes and indemnity insurance cover.

It is very easy to become evangelical about mediation, and the most important way solicitors can support the mediation process is to give it a fair chance. This workshop was particularly high on my list of sessions to attend during the conference. A family lawyer of 13 years but a newly qualified mediator of just four months, I learned the benefits of mediation at the very first co-mediation I attended. At the beginning, it seemed to be going horribly wrong. But after 90 minutes of heated discussion the parties reached an agreement. It was a miracle. I could imagine representing each party as a solicitor, but I am sure it would have been impossible to reach an agreement in such record time, if at all.