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Closer solicitor–mediator collaboration is key to brighter future, says NFM

Call for legal intervention in divorce to be ‘proportionate’

The chief executive of England and Wales' largest provider of family mediation has called for closer practical collaboration between lawyers and family mediators.

In a speech to Birmingham Law Society, Jane Robey, CEO of National Family Mediation (NFM) acknowledges "gaps" that have sprung up between the interests of professional mediators and solicitors, but says:

"What family mediators want is a genuine partnership with members of the legal profession to help people get to quality legal advice on the options for their futures that they have developed in mediation."

Outlining common ground she explains NFM "shares the legal profession's concern with the 'low' payment made to solicitors for referral under the Help With Mediation scheme."

Urging NFM–Law Society discussions to begin, she outlines three initial proposals for closer mediator–solicitor collaboration:

On lawyers seeing both parties

Referring to the recent recommendations of the government's Family Mediation Task Force she says:

"One of the recommendations provides an opportunity for us to do something different and that is for a lawyer to be  able to see both parties who have been in mediation. I want to work together with the legal profession to achieve that change. I appreciate there are regulations but I think it is worth looking at. It will help us all provide more holistic services for families, it will keep the whole families interests and needs  in the frame and will call time on adversarial proceedings."

On fixed fee advice

"Another opportunity for working together is to get the help with mediation working for all clients not just the legally-aided. I know family lawyers are grappling with the fixed fee for family matters. Maybe there is a parallel here with fixed fee conveyancing which as we know has been around for many years. For us to be able to tell clients that they can have  advice on the options they have developed in mediation and drafting services for a fixed would be enormously beneficial."

On the recommendations of the Financial Remedies Report

"The Financial Remedies Report recommends a unified procedure for financial order applications after a divorce and Children Act Schedule 1 applications. This I think will be hugely beneficial for families and keeps the money closely aligned to the children. There is also the fact that the MIAM is compulsory for both child issues and financial remedies and at every point there is emphasis on out of court settlement. which means there are opportunities  for us to support families and the courts as people hover between the steps of court and reaching settlement."

She concludes:

"I don't just want to be here talking about 'working together', but for today to be the first stage of some practical collaboration: arrangements from which both lawyers and mediators can both benefit with end users – children and families - central to those discussions."

Jane Robey's speech is clear in some requests she has for the legal profession, including an acknowledgement that a great many of the issues that form the basis of court battles are not necessarily legal ones:

"We need lawyers to understand that the options developed in mediation may differ from those they are used to developing in the court setting or even in negotiation but that this doesn't make them wrong – just different.

"If a mediated agreement is manifestly unfair to one party or the other then legal intervention is right and just. But I speak with many years' experience – and I know many here will nod in agreement – when I say that in the large majority of cases what's being argued about in the settlement isn't the cake on the table, but the crumbs falling from it.

"We all know the plethora of cases we've been involved in where the Judge's adjudication revolves around issues that are relatively minor in the grand scheme of things, like pick-up times from school. Yet those aren't and shouldn't be seen as a legal issue.

"I want it recognised that families need legal advice and intervention that is proportionate - and relevant to what they have already been able to agree between themselves."

Jane Robey also outlines how the dramatic increase in the number of unrepresented people is profoundly affecting the types of questions people are asking NFM: "Those who used to approach us had more often than not had the benefit of some early legal advice which provided some realism about the options available and helped to manage client expectation."

She also points out an unintended consequence of legal aid changes from a government which aimed to raise the take-up of family mediation:

"LASPO has caused the collapse of referrals from solicitors to family mediators and has flipped referral processes on their head. There are more people today who think their only option is now to head straight to court. This I think is caused by the poor information that has been put out by government about the changes."