The Bad Boy of Dispute Resolution. Who, me?
By Stephen G Anderson LL.B
October 12, 2013
On Friday, I was a panel member at a conference organised by the Leicester Family Justice Board. The plenary speaker was Sir James Munby, the President of the Family Division – the highest ranking family judge in England and Wales. I had planned to blog about what the panel did, but the president’s speech made me change my mind.
Sir James Munby was a bit of a revelation, I have to say. I’d heard that he was a bruiser; that he was good at talking but not so good at listening. Well it just goes to show that you need to hear someone yourself before judging them. I can see how others, particularly lawyers, might see him as a threat to their livelihoods. It’s easy to write someone off as not listening when they are saying thing you don’t want to hear. Sir James has an unenviable task. He is president at a time when the family justice industry is under huge pressures to change. Legal aid has all but been removed except for mediation. The courts are stuffed to the gills with self-representing litigants. More and more people are avoiding traditional legal practices when they divorce. Non-traditional family legal service providers such The Co-op and Eddie Stobbard have joined the fray. And mediators, financial planners and family consultants are all looking for a slice of the action too. And, (rightly or) wrongly, the government has decided that family justice is not a worthwhile repository for expenditure.
At the conference, Sir James was clear that there needs to be a cultural change in the way family justice is handled. Adversary is not the answer. It helps no-one: well, at least not most families going through transitions. And far from being a yes man for the government, he was unstinting in his criticism of the lack of joined-up government. He castigated it for not listening to those who were telling the Ministry of Justice that it needed to promote the availability of legal aid for mediation when they cut it for nearly everything else in April. The government’s short-sighted planning has resulted in mediation referrals falling off the cliff. Many mediation services are close to closure. Brilliant planning by a government that wants mediation services to become more prominent. Sir james also commented on those lawyers whose commercial sensibilities meant that they were no longer referring to mediation. They are not doing their own or their profession’s reputations any good at all.
When it came to my time on the panel, I was introduced by the chair, Andrzej Bojarski, as the bad boy of ADR (alternative dispute resolution). It was tongue-in-cheek, and I took it as a compliment. Nonetheless it was interesting, on reflection, that much of what I have been saying for the last 7 years or so is now what the most senior family judge in the country is saying. I am part of the advance party of cultural change that Sir James said must take place. So who’s the bad boy now? I’ll get the jackets if you buy the motorcycles, Mr President.
I am Stephen G Anderson. I am a professional mediator.
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What I appreciated about some of the panel members is that they have a ‘can do’ attitude, trying new ideas, embracing change. Adapting the rules, that for mediators, seem to be more ‘can’t’ than ‘can’. I’m quietly paddling my own canoe in their wake and enjoying the view.
It was remarkable wasn’t it? Go back even 18 months and I know that would not have been the case. For two professionals, one of whom started out as a psychotherapist and the other as a solicitor, to suggest the same approach shows how much things are changing.
Ipswich’s very own Marlon Brando as in The Wild One?
I wasn’t thinking that I was Oscar Wilde, I know that. I reckon the president is more Brandoesque than I am.
An interesting piece. So what ideas did they come up with for creating a creating public awareness of DR/mediation? Curious to hear more…..
It wasn’t an ideas forum, Joanne, so none came out of it. But the president said he expected the change to take place within 5 years. He told the conference that the private equivalent of the PLO will be published hopefully by the end of November but certainly before Christmas, and that’s not far off now.
It is fascinating how things move and that thoughts that were being ignored/brushed away/disputed not that long back are now considered to be commonplace. Having said that given the changes that have and are taking place it still baffles me that anybody thought things in family law could continue as they were. But as you say Stephen it is nice to have all this recognised at the top level. I have in mind the story of Chicken Little……………
Ha ha, I ALWAYS have in mind the story of Chicken Little, Louisa, when it comes to the family law industry. But just because the head honcho thinks things should change, and grassroots types like you and me, it doesn’t necessarily mean that those in between will come along willingly.
Let me start by saying that I firmly believe in mediation – until I sold my own firm I was a mediator and made every effort to persuade my doubting colleagues in Cornwall that it was a useful item in the dispute resolution toolbox. Since then I have been giving CPD lectures and again I take the chance to promote mediation whenever I can suggesting that lawyers get to know their local mediators, assess them as best they can and use them if they are confident about their abilities. There is, however resistance.
The resistance varies from those who just don’t understand it, through those who don’t trust it, to those who don’t like it. All of those types include in their lists of objections the fact that their clients might go into mediation and the next time they see them they have a wholly unsatisfactory result. The one thing which I don’t see very much in the promotion of mediation is the encouragement of lawyers to continue to advise their client whilst they are in mediation.
The Law Society recently came up with the word ‘unbundling’ for situations where a solicitor advises a client at key points in a case but doesn’t necessarily ever go on record, leaving the client to choose the times when legal advice is necessary. That is fraught with risk for solicitors helping clients in litigation but is an excellent description for what can happen when helping a client in mediation. I am certainly promoting it – perhaps the mediation profession could too?
Peter, thanks for your insightful comment. I agree with you about the potential role for lawyers. I would take it a step further and simply say that dispute resolution/agreement facilitation should be systemic. Lawyers could have a role at all stages of mediation, but they need to show a little curiosity. It’s no more about mediators educating lawyers than it is all about lawyers boning up on mediation.
My sense, as a former solicitor, is that many lawyers see mediation as a lesser product than whatever it is they use, and hence mediators are lesser professionals. Many mediators, fed up with being seen as competitors rather than complementary professionals, are looking for ways to keep lawyers out of the process.
Unbundling was not the Law Society’s invented term. It’s long been used by Californian DR professionals like Woody Mosten. As a mediator, Woody found that he had small amounts of time to fill during his working day which were too short for a mediation session. Undertaking discrete pieces of work helped cover this. I’d like to see lawyers become even more focused on mediation by offering fixed-price mediation support packages. Hardly any are but more will in the future. Like unbundling, it’s another opportunity passing many lawyers by.
That’s probably where the Law Society got the expression. Ignorance of the mediation process is the great enemy. Add the traditional tendency of lawyers to discourage their clients from any form of direct negotiation once the lawyer has been instructed and one can see how easy it is for the traditional family lawyer to see mediation not so much as a lesser calling but more as something which can’t be controlled and is thus to be avoided. I’ve met plenty of family lawyers who will probably never be persuaded of the value of mediation but there are plenty of others who are simply ignorant.
I agree that it is a two way street but at the moment mediators are complaining that there are not enough referrals so, in this imperfect world the onus is on them.
In one of my courses I specifically suggest mediation support packages as a comparatively risk free way of providing unbundled services but I always stress the importance of interim summaries in the mediation so the lawyer is not flying blind as will always be the case if the only information about what’s happening in mediation comes from the client. I doubt that any of us could accurately report on what happened during a 90 minute session with our soon to be ex in which difficult and emotional issues were raised. I know that for some reason not all mediators do interim summaries.
At the risk of being divisive, may I suggest that in one sense the roles of mediator and lawyer are incompatible. In mediation, the mediator seeks to help the couple qua couple, not two individuals. Collaborative law is the place for two individuals wishing to work together. The solicitor’s job is to advise the individual what the individual can do for the best for the child. The mediator seeking to help an individual and the solicitor seeking to help the couple are in error. The mediator might help the individual through the couple and the solicitor might help the couple through the individual but they should be aware of their self appointed limitations. In one sense the solicitor should not advise upon the mediation, but rather advise the individual as to how the progress or otherwise of the couple qua couple in mediation impacts upon the individual. I think it is inevitable that there will be outcomes in mediation where the impact upon the couple may well be beneficial but not so good for the individuals. This may well be where the solicitors give their advice and it is up to the individual to decide whether they wish to seek individual benefit or seek the benefit for the couple qua couple.
Your are absolutely right Andrew. The two functions are very different but they can still be mutually complementary. At the end of the day the lawyer wants the client to achieve a result with which the client is satisfied (and, to a lesser extent with which the lawyer is satisfied on the client’s behalf). The mediator wants both of the parties to be satisfied. Surely knowledgeable parties make for better mediation subjects (if that is the correct description) than ignorant ones. An ignorant party may be either unwilling to make concessions because he/she doesn’t know if they are important or so obsessed with some subjectively important but objectively trivial issue that he/she is immovable.
Good legal advice for each party in the background ought to reduce ignorance, improve the confidence of the parties in negotiation, perhaps remove some of their pre-conceived ideas and prejudices and thus improve the chances of a satisfactory negotiated settlement.
Peter, I wonder if the advice can be complementary? There is often a difference between an outcome which benefits the couple and an outcome which benefits the individual. The solicitor has to advise the individual. I wonder how easy it would be for the solicitor to advise: the best solution for you, my client as an individual is this, however the best solution for you as part of a separating couple is that. I advise you to take that rather than this solution. Also, I wonder how many solicitors are able to take the two differing perspectives, as opposed to looking at the couple’s solution through the lens of the individual. This leaves me with the concern that there is no-one under our current structures who can advise the couple qua couple, rather than individuals.
Andrew, what makes you think lawyers can’t advise a couple as a couple? Doing so wouldn’t breach the solicitors’ code of conduct unless their was a conflict of interest. What could be less conflicted than advising what is appropriate for the family/couple?
Surely, in the ideal mediation allows the couple to make their way to the ideal solution for them both. All I’m saying is that they are more likely to do so if they are each properly informed and advised. Mediators can only inform the couple as couple and so parties who don’t have access to legal advice may well reach an agreed settlement out of ignorance.
Having worked in a lot of firms as a locum over the last ten years or so I can honestly say that 90% of the lawyers I’ve worked for and/or with will always ask the client what they want to do once they’ve advised the client what is possible. We have to remember that more cases are settled by direct negotiation through lawyers than are settled in any other forum. The reason is that lawyers do have the interests of their clients as the centre of their thinking which means they do want to achieve the best settlement for their client. In the real world of the other party’s lawyer is seeking the same for his/her own client and so compromise is necessary. Contrary to the seemingly received wisdom lawyers are generally worried about how much they cost their clients and many, probably most compromised settlements are dictated by the cost/benefit/risk equation.
For couples minded to negotiate and where there isn’t anything going on in the background which will have the result of unduly influencing one of them in a way which the mediator doesn’t or can’t be expected to pick up on mediation is the best way forward. The risk of undue influence in the mediation is surely reduced with independent legal advice where the lawyer, looking or the best result for the individual client, can be expected to recognise that there is a problem.