Thursday, 28 June 2012
A growing trend is for lawyers to train as mediators. Mediation is seen as a useful additional service to provide for clients. Usually, it is offered in tandem with a lawyers’ existing specialism such as family or commercial law. Most importantly, mediation is increasingly recognised as a means of solving disputes, as it is cheaper than litigation and avoids fracturing, sometimes irretrievably, the relationship between the parties. LAG believes that mediation can be a powerful method of alternative dispute resolution, but there is a need for a wider understanding about the mediation process, its advantages and limitations.
Mediators are non-judgemental neutral third parties who seek to bring about solutions through facilitating discussions between the parties in a dispute to reach an agreement by consensus. For this to work the process must be entered into on a voluntary basis, with the parties controlling the mediation process and being free to walk away from it at any time. Mediation has to take place on a private and confidential basis, with the parties deciding if they wish to disclose any eventual settlement to a court. Discussions around the options for a settlement have to be carried out on a without prejudice basis in order to prevent parties being forced to accept solutions they have not agreed to.
There is no national accreditation and regulatory scheme which covers mediation services, apart from in family mediation. There is a need for a standard professional qualification for mediators which would require an accepted level of competence for a person to practice as a mediator, whether they are working in family, workplace, community or, civil law dispute mediation. As with other professions this regulation should be undertaken by an independent professional body for mediators.
A fundamental principle, which should be common across all mediation, is that in cases involving legal rights parties need to have access to legal advice. Without this, an estranged wife or husband in a divorce case for example can believe, rightly or wrongly, that if they had been able to go to court they would have obtained a better result. This can risk injustice through people agreeing to solutions which are inferior to what the law allows for or, the mediation process unravelling with no agreement.
A requirement to consider mediation in small claims before the country court is due to be introduced and in family law it is already compulsory to consider mediation before taking a case to court. The government is right to try and persuade parties in dispute to look at mediation, but they are also, withdrawing legal aid for most family cases from April next year, as part of a their cuts to the civil justice system. This is likely to lead to many unrepresented parties clogging up the court system as in many family disputes access to legal advice is a prerequisite to resolve problems and without it mediation alone cannot provide a solution.
The mediation process can help former partners in a relationship reach solutions that deal with the practicalities of a break-up, such as contact and residence arrangements for children and settling financial support. Perhaps, mediation’s greatest strength in family cases is that it can contribute to re-establishing a relationship between estranged couples on the basis of mutually agreed solutions to disputes. Ultimately, it is not the mediator’s role to decide on the fairness of the outcome. Their duty is to ensure the mediation process has been fair and equitable and it is up to the parties to reach mutually agreed solutions.
LAG has just published, Making mediation work for you- a practical handbook by Kate Aubrey-Johnston.