In this article Family Law in Partnership associate Elizabeth Fletcher considers whether family mediation works for separating couples who cannot afford independent legal representation and what other options might be available.

Couples who are going through a divorce or separation and can afford to engage in the process that most suits them and their family now have multiple options open to them. There is of course the litigation process, but there is also now arbitration (for both financial and children matters), collaborative law, and straightforward solicitor-led negotiation. All of these options come with a lot of legal advice and support.

Mediation is also available to separating couples, and it requires each partner to obtain separate and independent legal advice. All this is fine, if people have the money to pay for it, but what if they don’t?

On 1 April 2013, legal aid for family matters was all but abolished through the Legal Aid, Sentencing and Punishment of Offenders Act 2012, save for those who qualified financially (a tiny minority) and those who wanted to attend mediation. This has left a vacuum for those who cannot afford to engage a solicitor, do not qualify for legal aid, but still need to know what a fair financial settlement is and what the right arrangements are for their children. Mediation is seen by the government as addressing that gap.

Family mediation

Both parties attend sessions with a mediator, who may or may not be legally qualified. They will remain neutral and will attempt to facilitate a settlement. Both financial and children issues can be addressed and dealt with.

Family mediation has many advantages:

• The parties are to a much greater degree in control of the decision making;
• The parties can, hopefully, get to a settlement in three to five sessions over a couple of months, as opposed to the 12 months it can take to get to a final hearing in a family court process;
• The process is not adversarial and therefore it encourages communication between the parties; and
• It is certainly far more bespoke than anything that the family courts would be able to provide.

There can, however, be disadvantages to family mediation as well:

• Mediators do not give legal advice or information. This is why separating couples using mediation are always advised to obtain legal advice to inform their discussions in the mediation sessions. This does increase the costs for the parties;
• As a result, mediators do not need to be legally trained and are not regulated to anything close to the same extent as lawyers; and
• Mediators are not obliged to ensure that there has been full and frank disclosure between the parties and mediation is not forensic in its approach. If there is any kind of power imbalance in the relationship between the parties (such as a difference in financial understanding), then this will not be addressed by the mediator.

Mediation is an excellent process for many separating couples who can afford legal support outside of the process. But for those who cannot, the government has not yet provided an answer.

Redressing the balance

Mavis Maclean and John Eekelaar, Oxford academics at the Oxford Centre for Family Law and Policy, have written a book examining this issue: Lawyers and Mediators: The Brave New World of Services for Separating Families. In their view, if the parties were able to obtain joint advice within the mediation then this imbalance would be addressed.

The lawyer/mediator would present the couple with a range of options as to how they could settle matters between them. The lawyer/mediator would proactively help them to come up with a plan that worked for them, and then a draft consent order could be drawn up. When it was all agreed and finalised, they could potentially still see an independent lawyer to have it all signed off. It is in effect enhanced mediation.

Maclean and Eekelaar note in their book: ‘If we accept that the legal framework is of value in protecting the vulnerable and promoting fair agreements in family matters in times of stress, it follows that parties need to know what the law requires and how they can agree enforceable decisions in the shadow of the law.’

Certainly, family lawyers lose count of the number of times we are asked by clients whether we can act for them both, but surely clients at the lower end of the economic scale are still entitled to legal advice and information as to the most appropriate financial settlement and child arrangements for their family, provided in a cost-effective setting?

Elizabeth Fletcher is an associate at Family Law in Partnership. She advises on all aspects of family law including financial disputes on separation, private children law and the separation of unmarried couples. She is a Resolution Accredited Specialist with specialisms in private children law and domestic abuse. Contact Elizabeth at E: ef@flip.co.uk or T: 020 7420 5000.

This article first appeared in Solicitors Journal on 11 October 2016 (SJ 160/38) and is reproduced by kind permission.