16 September 2011
The government’s recent legal aid proposals published in the Family Justice Review have emphasized the requirement for all Clients contemplating Family Court proceedings to be assessed for their suitability for mediation.
Resolution First for Family Law recently reported that many of their members say that they always assess and advice clients on the various means of resolving disputes, including the mediation option.
Why then has the government felt it necessary to undertake their review and introduce this requirement?
The Resolution Code of Practice requires members to inform clients of the options available to include counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings. If this information is being given in a positive, constructive way one would expect fewer cases would come before the Courts.
Yet evidence suggests that Courts are as busy as ever. Why is that so?
Resolution report that clients complain that they are not give this information and many clients feel that once they enter the lawyers office they are drawn into a process which is very difficult to slow down or stop and that the lawyers take no account of their individual needs.
If mediation is mentioned at all it is often said to be unsuitable or dismissed. Round table discussions are often advised against or refused. In consequence Clients feel powerless. The Collaborative process is treated with suspicion.
The failure to give this information may be due to ignorance about the choices available or because of disappointing experiences in the past. In difficult economic times there may also be a fear of losing work.
Some lawyers may feel that by referring clients to mediation they lose control. Often there is a misconception that legal advice can only be given after the mediation process but this is simply not true.
Some non-lawyer mediators take the view that the lawyers should be kept out of the process at all costs. Again this is unhelpful. Legal advice should be given alongside mediation. The lawyers can be a very important part of the process.
Some lawyers will assume mediation is not suitable because of a perceived imbalance of power in the couples’ relationship. But these are the very situations that mediators are trained to deal with.
If clients are given positive, impartial information about all the options available to them, they will be able to really value and appreciate what lawyers and others can do to help. Surely this is the very least we must do to try to help clients at a time in their lives when they may already be feeling vulnerable, fearful, sad and stressed.
For more information about the Collaborative process or Family Mediation please contact Johnson Clarke Solicitors. We will always be very happy to talk to you. Nigel Clarke is a Resolution Accredited Specialist with Johnson Clarke Solicitors.