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Mediators vs Lawyers

Aug 25, 2018 | News

When do solicitors refer to family mediation for a Mediation Information & Assessment Meeting (MIAM)? In an ideal world, the family solicitor would encourage mediation as a way of seeing if some, or possibly all of the issues, could be resolved quickly and in a cost effective way without a courtroom battle. Sadly, the reality is much more bleak and many solicitors see family mediation as a hoop to jump through before submitting an application to court for their client.

Last week I was contacted by one of the UK’s leading family law firms. The very experience solicitor asked me to conduct a MIAM for their client, which I agreed to do. The client details were provided and also a date and time for the appointment. No complaints so far!

MIAM

During the MIAM with Client A I explained the mediation process and we also discussed the issues that were of concern, many of which were not financial i.e. ownership of the family dog and communications strategies going forward. Client A is a highly educated woman and was very much in control during the MIAM. She was asked if she would attend a joint mediation session with her ex-partner; she replied clearly that she would if her ex-partner would agree to attend. The session concluded with a clear wish to mediate.

I subsequently went on to conduct a MIAM with Client B. Client B explained that he wished to engage with mediation, as he wished to avoid expensive legal fees and court because already he had had to take out a loan to fund the proceedings. He agreed he would mediate as well. The session ended with me organising a joint session, with some suggestion of agenda points on both sides.

On the same day as Client B had finished his MIAM, Client A’s family solicitor telephoned me and immediately started the conversation with, “Can you send across the signed court form so we can put in a court application?” I informed the family solicitor that both parties were willing to mediate and had agreed to attend a joint session. This was met with silence and then I was told that she needed to speak with her client. This was a Friday. On Monday morning I received an email from the family solicitor stating that her client had changed her mind and that she did not wish to attend mediation. I explained that her client may have to explain the reasons for not attending mediation and her reply was “That’s fine” and reiterated her request for the signed court form.

From this account, it is clear that Client A’s solicitor was never going to consider mediation and that it was merely an inconvenient obstacle. It was clear that this solicitor was acting in her own financial interest and not the client’s. Sadly, her actions also resulted in massive legal costs for Client B, who was in massive debt and wanted to mediate.

It is the role of the mediation community to continue educating the public. Many of the people who use our services initially did not know that family mediators existed. The default position of most people is to call a solicitor and not a mediator when sorting out a divorce or when separating. Social media is the strongest platform for the mediation community to get out the message that it is better to mediate than litigate!

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