Mediation is not a panacea – says who?

There are many things that anger me, and few have got anything to do with my advancing years. As a young man during the 80s, my sense of fighting injustice seemingly had no better opportunity to flourish than as a “gun-slinging” trade union activist. With my band of brothers and sisters, I unsuccessfully fought a tidal wave of Thatcherite economic change that has left us as a nation: without any significant manufacturing base; totally reliant on the financial services industry – that have put us and our children into hock and yet continue to draw bonuses as if it never happened; and with much of our media owned by one of Thatcher’s acolytes. Ah, her supporters say, but at least we’re not in hock to the trade unions. Well no, but surely nobody still believes it is any better to be reliant on an industry which is so powerful, despite the fact it nearly bankrupted us (and we’re paying heavily for the greed) it can continue to richly reward itself as if the banking crisis never happened?

And then I became a solicitor, and a family solicitor to boot. Trained in the arts of the adversarial court system – which is not unlike a union/management confrontation where the winner is the one with the strongest will – somehow I was supposed to have learned the necessary skills to help people get through a divorce. But I hadn’t realised that the way lawyers are trained, and the legal system itself, are counterintuitive as far as relationship breakdowns are concerned. So for years I did what I’d been trained to do – send vile letters to my clients’ solicitors in the belief that the strength of my inflammatory comments were equal to the merits of my clients’ cases. But all that happened was a great deal of acrimony and expense before my clients or their partners gave up the fight, either through lack of funds or lack of will. If it was my client who gave up, I’d tell them that they’d properly “compromised” and had not been bullied into submission. If it was their partner who gave up, I’d tell my client that they’d won.

It was only after 2005 when I trained in collaborative practice, and later as a mediator, that I learned the art of helping clients achieve true compromises; settlements based on mutuality of interests rather than power and money. I learned how we are hard-wired as children to seek out one parent to sort our squabbles out and that we don’t naturally chose separate problem solvers. This is why mediation is such a poweful process. Helping clients achieve their own solutions rather than imposing my idea of fairness has profoundly changed the way I work and my clients’ outcomes.

So what’s any of this got to do with mediation not being a panacea. Well, it’s like this. I frequently read comments by lawyers which go something like, “mediation has it’s place but it’s not a panacea some people claim it to be” or “mediation is not for everyone”. Now I agree with both of these statements, but only in a qualified way. To begin with, I’m not sure I’ve ever read of anyone claiming that mediation is a panacea, so I don’t understand why the sentiment needs to be challenged. And mediation isn’t for everyone, true. But most non-mediators reading that will think “I told you so, mediation is only suitable for a few cases” and so are able to justify to themselves their poor client-to-mediation referral record. These sorts of comments do nothing to challenge family lawyers’ approach to their work.

Since training collaboratively 6 years ago, I have been to court only twice: once for an interim hearing in a case which started before my training and once last year for a preliminary hearing in a case which subsequently settled before the next stage of the court process. Apart from that, all my clients cases have been resolved using mediation, collaboration, constructive solicitors’ correspondence or some other form of ADR process. Only once has my client needed to instigate the court process ( where his wife had refused to engage in any process for over 12 months), but even in that case we were able to suspend the court timetable in order to meet and agree round a table. Apart from these examples, none of my clients have had the court process launched against them.

That is not to say that there isn’t a place for the court. Where a person or property is at real risk of harm or dissipation then the court’s emergency powers will protect in a way the ADR process cannot. And sometimes, there may be real issues of law which only a judge can resolve. But by and large, courts should not be needed for typical divorce related matters and it’s us lawyers who need to understand this and change the way we work.

So, mediation may not be a panacea, but mediation, collaboration and other methods of appropriate dispute resolution most certainly are and if anyone disagrees with me, they’ll need to explain how it is that my clients are special.

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