This is the response of National Family Mediation to the Family Mediation Council’s consultation on Family Mediators drafting Consent Orders
National Family Mediation (NFM) is a network of Family mediation member services and provides family mediation in over 500 locations in England and Wales. All members are registered charities or community interest companies.
Family mediation was founded in 1982 by NFM. We have developed, maintained and managed, the development of training, professional standards and the delivery of services.
All members are contracted to provide services through the Legal Aid Agency
Our unique and defining characteristics are:
• A focus on children
• A not-for-profit system of providing services
• Mediation that seeks to improve communication as well as achieving settlement
This response is prepared following consultation with the membership and the NFM Professional Practice Committee.
1. Would the role of a mediator as an impartial third party in mediation be jeopardised by that mediator drafting a consent order, once a mediated agreement has been reached?
The consultation is limited to consideration of mediators drafting consent orders following successful conclusion of mediation.
This proposal will create a significant conflict of interest for mediators.
It is widely acknowledged, indeed embedded in the Legal Aid contract and specification, that the best outcomes in mediation come from mediation supported by independent legal advice. It is this process that provides checks and balances for clients where the outcomes could have far reaching and long term consequences for their financial wellbeing. This we do not believe can be achieved with the mediator changing role at the end of mediation.
Clients may have reached agreement in mediation but when the terms need to be incorporated into a consent order, far more detailed legal questions need to be asked. How the Order is worded can have severe ramifications for either party and it is difficult to see how a mediator could address that impartially and avoid giving advice. Inevitably this will also lengthen the process for the clients and could result in the mediator having to have a detailed exchange of emails or further meetings with the clients to ensure that the legal documentation corresponds with the clients’ agreement. Clients look to the mediator to be “fair” and impartial and this simply cannot be achieved if the mediator on conclusion of the session then goes on to draft an Order.
The current SRA guidance for solicitor mediators drafting Consent Orders carries with it many warnings of the problems in so doing and even suggests that the mediator should not do so if they have “concerns about potential unfairness to either party” – how can that balance be achieved when clients have come into mediation believing that the mediator does not have a stake in the outcome but is there to facilitate discussion and generate options for settlement? if one is to be neutral? What impact would this have on client services?
The fact that the SRA offers guidance at all only serves to confirm that there is a lack of understanding by the SRA about the role of the mediator and that mediation is a distinct activity and different from providing legal services .
In raising the question there is a danger of returning to the unhelpful and arid territory of arguing for a distinction between solicitor mediators non lawyer mediators . We have moved so far beyond that with mediators from all backgrounds achieving demonstrable proficiency in all areas of mediation through the various accreditation schemes, culminating in the current FMCA which has AIM as its only qualification.
The proposal for mediators drafting consent orders also carries with it complicated insurance issues that would need to be fully explored if this proposal is to be implemented.
2. Is it possible to draft a Consent Order without giving legal advice on its terms?
There are many clauses in a Consent order that can be drafted pro one or other party. The mediator would not be able to address this without giving advice on the advantages and disadvantages of a particular clause. This would not be simply “information giving” as is permissible in the mediation process itself because of the implications for either party of the wording on the Consent Order.
There would also be serious risks of potential liability for the mediator in the event of error.
The vast majority of MOU’s on financial matters do cover all aspects that need to be taken into account by a court before final orders are made. They are not however written in the arcane language used by courts and solicitors.
The terminology of the standard Mostyn Consent Orders in Financial applications is such that no lay client will understand much of it and a mediator, assuming they were utilising those precedents, would need to explain/advise on the terms so that the clients understood what they were signing in just the same way as a solicitor would do now under the existing system. It would be impossible to do this without giving legal advice and this would fundamentally affect the impartiality of the mediator.
The changes to legal aid in 2014 and the general unwillingness of the public and clients to seek legal advice because they fear the costs, exposes a different problem for the courts and government who are now faced with an increased numbers of litigants in person. The solution to this problem does not lie in mediators providing drafting services.
In the case Minkin v Landsberg (2015 EWCA Civ1152) King LJ stated that the drafting of a Consent Order is “very hard” and the order is a “complex document which must deal with all aspects of the parties’ financial lives now and for the future”. There was reference in this case also to the problems that District Judges are experiencing with litigants in person who are seeking a Consent Order but have not drafted it. It was said that the judges’ task “…..is to approve the order not to sit with the parties to painstakingly work through with them every parameter of the order in order to ensure they have considered every angle and future eventuality; to do so runs the risk that the judge will be seen to be giving advice…..’. If it is not OK for the judiciary then it is surely equally not OK for mediators.
We would suggest that rather than mediators drafting consent orders that, where clients are self representing, the Courts consider using the clients MOU’s and OFS’ as the basis for the consent order and that the MOJ and Judiciary look at ways in which mediated outcomes can be used more efficiently in the legal process.
Mediation by its nature provides clients with options to develop more flexible agreements and arrangements that suit them and their circumstances and providing that the outcome which has been agreed by the parties is not manifestly unfair to one or other party could be used as the basis for final settlement or Order. Fully accredited mediators are aware of the parameters that the courts use and provide information as appropriate to guide clients to fair settlement.
3. Is it appropriate to draft a Consent Order without giving advice on its terms?
Solicitors themselves are not allowed to act for both parties in preparing a Consent Order because of the potential conflict issues, so professionally and ethically it must be equally wrong for a mediator to do so.
The role of the mediator has always been separate to that of a lawyer and just because there may be pressure from clients or indeed Judges for mediators to prepare Consent Orders, does not mean that the basic principles of mediation, which are there for the very reason of protecting clients, should be dismantled.
Overall NFM does not support the notion of family mediators providing drafting of consent order services and believe that to introduce this would undermine some core principles of mediation practice.
We have also identified that there are significant risks to adopting this practice that have not been fully considered namely conflict of interest and insurance liabilities.
We completely appreciate the need to provide clients with a more holistic service and would wholeheartedly wish to achieve this but do not believe this is the best way to achieve it.
Given that for most families going through divorce or separation this will be their first encounter with the law, and that for most the system is mystifying and confusing, the responsibility for simplifying the system rests with government and policy. Changes to policy would facilitate families reaching their own agreements following relationship breakdown that are fair and durable. This is already achieved in mediation and it is time that policy makers and the judiciary recognise the value of mediated agreements as outcomes that are far more likely to endure beyond any court order consent or otherwise.