By Leah Caldwell | Mediation | April 2024

---

Mediation or solicitor for divorce? Why collaboration is key

Bio: Leah is a director of Mediation First and an FMC accredited family mediator with over 10 years’ of experience. She is also Treasurer of the Family Mediators Association (FMA) and trains other mediators to become Child Inclusive Mediators.
View profile

While mediators and solicitors may seem to offer different paths, the truth is that their collaboration often provides a more comprehensive support system for clients. Understanding the roles of each can help shed light on their functions and illustrate the benefits of cooperation.

Yet, it’s not uncommon for mediators and solicitors to feel that they are being pitted against each other. I have heard solicitors condemn mediators as ‘fluffy, do-gooders’ that don’t understand the law. I have heard mediators denounce solicitors as ‘hardnosed, litigious, and insensitive’ to the lived-in experiences of their clients.

Ok, so these are slight exaggerations. However, the point is that I don’t recognise either of these caricatures. Instead, the mediators and solicitors that I work alongside share a common passion for wanting to achieve the best results for their clients and this is what drives them.

In this article, I’ll explore how mediators and solicitors work in tandem to facilitate better results for clients.

Defining roles: mediators and solicitors in divorce

Mediators and solicitors fulfil unique roles in divorce proceedings. By understanding these roles, clients can better decide how to approach their divorce process.

What does a mediator do?

A mediator facilitates discussions between clients that are in dispute, helping them reach a consensus on various issues like property division, child arrangements, and financial arrangements. Mediators:

• Provide a neutral ground for discussion.
• Help both parties communicate their needs and interests.
• Encourage solutions that benefit both parties.
• Can speed up the resolution process, making it less costly.

What does a solicitor do?

A solicitor offers legal advice, represents and advocates for their client's interests, and ensures that any agreement complies with the legal framework. Solicitors:

• Offer expert legal advice based on current laws.
• Represent clients in negotiations and, in some cases, court proceedings.
• Prepare and draft legal documents like divorce applications and consent orders.
• Ensure the client understands their legal position.

Helping clients is what unites mediators and solicitors

In essence, what both mediators and solicitors seek to achieve is the same thing – helping clients to move forwards with their lives.

We just do it by different means – mediators by a process which helps clients to share information and discuss together (sometimes in different spaces) what happens next; solicitors by providing legal advice and negotiating or litigating on a client’s behalf to make progress.

How working together creates best results for clients

How do these two ways of helping clients work alongside each other? The answer is twofold:

• Independent legal advice is an important element in the mediation process; and
• Solicitors will increasingly need evidence that clients have engaged with the option of non-court dispute resolution (including mediation) to progress/ avoid sanctions within court proceedings.

The interplay between mediation and legal advice is critical. While mediators can help parties find common ground, solicitors play an essential role in ensuring that agreements are legally sound and enforceable, and are in a client’s best interests. This dual approach not only speeds up the divorce process but also often results in more workable outcomes.

The benefits of independent legal advice (within mediation)

As I regularly explain to clients, from my experience, there are four main elements that influence their decision-making in mediation:

• Emotions
• Perceptions of fairness
• Independent legal advice
• Pragmatism

It’s not within the remit of this blog to explore these different elements in-depth other than to say that emotions and perceptions of fairness can be shaky lenses through which to negotiate.

In contrast, independent legal advice, together with a practical understanding of how to achieve goals in the most efficient manner, tend to be firmer territory for clients’ decision-making.

In relation to independent legal advice, it has several benefits for clients:

• It provides some form of yardstick for clients, who are often insecure about making ‘bad’ or ‘wrong’ decisions.
• It provides a reality-check for clients – i.e., if they are likely to get a worse outcome in court, they may rethink the parameters of their negotiations within mediation.
• In cases where clients are negotiating a financial settlement alongside divorce proceedings, legal advice can help them to ‘consent order proof’ any plans.

Consequent to the above, and in accordance with Family Mediation MIAM Standards, at Mediation First the benefits of early legal advice is explored with clients during a MIAM and throughout the mediation process.

The benefits of exploring non-court dispute resolution at an early stage

With legal frameworks evolving, such as the upcoming changes to the Family Procedure Rules in April 2024, there is a stronger emphasis on non-court dispute resolutions. These changes highlight the importance of mediation and the need for legal advice to navigate these alternatives effectively.

The changes include:

• The specific inclusion at rule 28.3(7)(aa) that, in making a costs order in financial remedy proceedings, a court must have regard to failure to attend a MIAM or non-court dispute resolution.
• The introduction at rule 3.3(1)(A) of a process whereby, if required by a court, parties must file and serve a form setting out their views on non-court dispute resolution as a means of resolving matters.
• The re-drafting of rule 3.4 and greater emphasis placed on courts to ‘encourage’ non-court dispute resolution where appropriate (and the removal of the requirement that both parties need to agree to this).
• The tightening up of MIAM exemptions, and court oversight of MIAM attendance, at rules 3.8 and 3.10.
• Changes to the conduct of MIAMs at rule 3.9 to incorporate consideration and exploration of other methods of non-court dispute resolution and an assessment of which may be the most suitable means of resolving the dispute.

New legal requirements and their impact on family law

The new rules encourage the consideration of non-court dispute resolutions at all stages in court proceedings. This shift aims to reduce the strain on court systems and promote more amicable resolutions, benefiting both parties financially and emotionally. Parties will be ‘encouraged’ to resolve matters via non-court dispute resolution processes and can face costs sanctions if they fail to do so.

Mediation Information and Assessment Meetings (MIAMs)

Pursuant to the above, it will be increasingly important to ensure that clients have engaged in a robust and meaningful exploration of non-court dispute resolution processes prior to court proceedings. As per the changes to rule 3.9 of the FPR, this is exactly what should happen in a MIAM (and, incidentally, what we at Mediation First already do!)

As the name suggests, a MIAM (Mediation Information and Assessment Meeting) involves a two-way exchange of information together with an assessment by the mediator as to whether mediation is likely to be helpful and appropriate. It is not just a precursor to the mediation process, but an opportunity to help clients to fully understand all the non-court dispute resolution options available to them in resolving their dispute and discuss what option will be most suitable for them.

If clients then decide that they want to proceed with mediation, we don’t just agree to this, we screen to make sure that clients can be safe and free to make informed decisions within the process. Where appropriate, we may tailor the model of mediation that we use (solicitor assisted, shuttle, co-mediation) to meet the needs of clients.

Final thoughts

The synergy between mediators and solicitors in divorce proceedings can significantly enhance the decision-making process and outcomes for clients.

At Mediation First, we recognise the value of working alongside solicitors, and other professionals, to give a joined-up service to clients. If you are a solicitor, or prospective client, that wants to find out more about the ways in which we do this, please contact us on:

Our solicitor referral form
Tel: 0330 320 7600
Email: office@mediationfirst.co.uk.