Before I mediate, should I speak to a solicitor first?

There is absolutely no need to speak to a solicitor before you mediate. Mediation does not prejudice your legal rights. If you meet with a mediator, they will explain what your other options are if mediation isn’t suitable. One of those might be to speak to a solicitor.

(Once you start mediation, you may be encouraged to speak to a lawyer to get a specific piece of legal advice. So I’m not saying “Don’t ever speak to solicitors or lawyers” by any means.)

Communication’s the problem, not the law

Many of my clients come to mediation only after they have first tried to solve their problems through solicitors. Family solicitors have a responsibility to help clients consider at the earliest opportunity whether mediation might be suitable. Yet solicitors do so rarely. This is largely because most solicitors hang on the notion that family disputes are about the law. The law is something they know a lot about of course. But mostly, disputes are not about the law. Disputes are usually created by poor communication. Poor communication has nothing to do with the law. Poor communication is something that mediators are trained to help address.

Don’t waste money and time

By the time those who have engaged solicitors eventually come to mediation, they may already have spent tens of thousands of pounds and wasted 6-12 months of time. More importantly, the adversarial process solicitors use polarises and embitters them. This makes them believe that there’s no chance of a peaceful resolution. They have so much faith in solicitors, they can’t see how mediation can possibly work,

Why do so many of us who are going through family traumas and relationship breakdowns want to see solicitors at the first sign of trouble? Why don’t more of us find mediators to help at the earliest sign of trouble?

The state encourages court over mediation

It’s all to do with our ancient culture of dispute resolution. England’s court system is over 1000 years old. The working clothing of High Court judges hasn’t changed much since the reign of King Edward III in the 14th century. What this means is that when we have problems, we’re hard-wired to find a judge to tell us what should happen in the heavily subsidised courts. We’re not supported in sorting things out for ourselves.

Mediation is the new kid on the block

By comparison, mediation is the new kid on the block. The first family mediators trained only around 30 years ago. “If mediation is so good, why isn’t it paid for by the state the way courts are?” is a perfectly legitimate question. The answer is that changing people’s behaviour is difficult when faced with a 1000 year old tradition and a legal profession reluctant to give up its vested interests.

Speak to a mediator first

So, if you want to mediate, speak to a mediator first. You may find that you can avoid the 6-12 months of delay. You may find and the tens of thousands of pounds of legal costs that you could otherwise experience if you first speak to a solicitor.

I am Stephen G Anderson. I was a practising solicitor. I am now a professional mediator.

Stephen G Anderson, family mediator

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