Solicitors practising private family law can often be heard to say that 90% of their cases settle using “lawyer assisted negotiation”. I’ve seen it said recently on Linkedin posts. It’s a knee-jerk response when they are asked why they don’t collaborate or refer to mediation more often. It’s a statistical comfort blanket and it’s a misnomer.

I’m not talking about collaborative practice

(Let me be clear that, while collaborative practice is the very apotheosis of  “lawyer assisted negotiation”, it is not what I am addressing here in this blog. Here, lawyer assisted negotiation means working via correspondence and the occasional meeting.)

I am not saying that family lawyers willingly promote court battles. But if they rely on correspondence to conduct a dialogue about a failed relationship in which communication has broken down, their mirroring of the protagonists communication problems – notes left out for the other to see, brief messages by text and email – will steer the clients towards greater conflict, not help address it.

Lawyers have no agreed process to resolve disputes

Lawyer assisted negotiation follows no commonly established or applied process. I don’t know any book, guidance or manual where the rules of engagement are set out. It seems to work broadly like a cross between horse trading and a Dutch auction. It is probably unique as a negotiation tool in that it keeps the participants apart from each other, requiring them to negotiate through slow, expensive correspondence. It does not use principled negotiation techniques, but adversarial ones. It does not address power imbalances, but tends to exploit them. At the end of the day, the result is what the lawyers wants not necessarily what the clients want.

The “winners” tend to be those who can use the correspondence to bully their spouses into submission. Or they have deeper pockets and can more easily afford to pay the lawyers’ fees. It does not create well thought through, financially sound, child focused outcomes. It increases protagonists conflict and uses no techniques to manage it.

If it works, why does it cost so much and take so long?

If 90% of cases settle through correspondence, of what proportion of that 90% did lawyers issue court proceedings in order to create some pressure? How many settle at the doors of the court at the first, second or final hearing. How many settle out of fear: terrified at the haemorrhaging costs and worried that their spouse’s solicitor or barrister may be giving better advice? Does anyone believe these can really be good settlements?

All of this isn’t entirely the lawyers’ fault. We have an adversarial court-focused dispute resolution culture and lawyers train at great expense to know how to use it. Yet divorce is not really about the law at all. There is rarely any dispute over the law in a divorce case. Divorces have at their heart relationship problems with a large amount of financial uncertainty thrown in. Culturally, partisan lawyers may be who many people choose when they feel emotionally and financially vulnerable, but non-partisan professionals will typically be better able to help them achieve the a better outcome for them and their families.

Even collaborative practice has huge challenges

US lawyer Stu Webb, 25 years ago now, developed collaborative practice, a lawyers led principled face-to-face negotiation process that manages conflict and promotes better outcomes by putting together a team of professionals to help the couple. If practised properly, it is inexpensive (thought not as inexpensive as mediation) and leads to better outcomes. It was imported here by Resolution in 2003. Over 1700 solicitors have trained in the process, yet even though many lawyers have the means to offer this wonderful process, it is used rarely. Why?

The challenges with collaborative practice are three-fold. First it requires real and deep trust and co-operation between the solicitors. This has proved to be too difficult for most adversarially trained lawyers to acquire. Second, it requires the solicitors to be equal not dominant members of a team (including one or more others such as a child specialist, financial planner and relationship coach). This means a reduction in their roles and so a consequential reduction in their income. Third, it requires a single ‘project manager”. In enlightened practices such as Melca in Melbourne, Australia, they do just that. In the model universally practised here, (though I have heard of one exception in Surry, so there might be a few more) the two lawyers are the project managers: two project managers is like having two independent steering wheels at each end of a car.

Lawyers have high targets to meet

The other reason lawyers as individuals should not be shouldered with all the blame for the profession’s reputation in divorce matters id because they may have less control over their day to day work than they would like. Many firms’ business plans rely on traditional outmoded models. These require their family lawyers to charge £150-£350 an hour to meet high targets. These targets are more easily reached if  lawyer assisted negotiations are adopted as their preferred tool – the 10% of cases that go to a final hearing, especially, generating huge fees – rather than collaboration or referring to mediation.

The reason why MIAMs were introduced was because it was clear that, despite many, many people visiting solicitors for help with their relationship problems, too many ended up in court . Disputants weren’t being offered collaboration or mediation, despite the Law Society’s guidance to family lawyers, and Resolution’s Code of Conduct.

Courts are still needed to provide protection

Those who need the courts’ protection, or who need a conflict of law resolved, will need a judge. Those who cannot make their own decisions may also need a judge, though the supportive collaborative process might be a better starting point. The great majority of people should be able to solve their family problems with the help of collaboration or mediation.

Family mediation in England grew out of the lawyer referred model over 30 years ago. But they no longer need to ask lawyers for referrals since they can attract them directly. If I was a practising family lawyer (private law), I’d want to meet with all my local trusted mediators to find out how I could better support my clients into mediation, and how I could better support them once they are mediating. I could then build a practice based on peace making, and distance myself from the profession’s war mongering reputation.

I am Stephen G Anderson. I am a professional mediator.

Stephen G Anderson, family mediator

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