In this second blog Emma Ingham reflects on the role of getting legal advice alongside the family mediation process, and makes it clear that it is not – and shouldn’t be seen as – a hostile or antagonistic step. Over to you Emma…..
It always makes me wince a little bit when I hear an angry soap character say the words “you will be hearing from my solicitor”. It certainly adds to the drama (and anyone who knows me knows that I love a bit of drama on the telly) but I worry that ordinary people, those of us who don’t live in Albert Square or such like, will think that taking advice from a solicitor is a negative thing or means that you want to have a long and drawn-out battle. It doesn’t. Taking legal advice is always a good idea and solicitors and mediators, while having very different roles within family law, can work in parallel to support their clients with their difficulties and moving them forwards.
I am a member of the College of Mediators and as such I need to follow their Code of Conduct. Paragraph 4.4.4 of the Code states that “mediators must make it clear to participants the difference between their role as mediator and any other professional role in which they may act”. This is why mediators will spend quite a bit of time during the MIAM (Mediation Information and Assessment Meeting) explaining to their new clients that they cannot and will not give legal advice, they will not be telling them what to do and will always remind them that they should seek independent legal advice throughout the process. 
If an agreement is reached, mediators will prepare a Child Arrangements Plan or a Memorandum of Understanding, detailing the terms of the agreement. The clients will then take that agreement to their solicitors to get advice on the implications of the agreement or have it turned into a legal binding document. That is exactly as it should be. It is not appropriate for the mediator to be involved in drafting legally binding documentation. But I think it is important for clients to speak with their solicitors and take advice if necessary, throughout the whole process. In my experience, mediation sessions are much more successful and productive when the clients are discussing issues with one another, confident that they know their individual legal position and where they stand. If the client and their solicitor keep in regular contact in between mediation sessions and the client is fully advised, this can avoid any unfortunate scenarios whereby an agreement is reached that the solicitor does not believe to be in the client’s best interests. If the clients have made progress in their discussions and their communication has improved, going back on an agreement could then do untold damage.
An option to consider, if clients wish to have the support and advice of their solicitors during the mediation session itself, is Hybrid mediation. This is based on the “caucus model” whereby the solicitors have a more active role in discussions. The mediator will meet with both parties and their solicitors as a group before they split into two separate groups. Each group will then discuss the issues together, with the mediator moving between them, supporting them in order to reach an agreement. The benefit to the client here is that it is a quicker process as the solicitor is on hand to give legal advice on any terms being proposed and the legal implications of such.
Consulting or instructing a solicitor is of course a personal choice and one that should not be forced upon anyone. However, neither should it be seen as a provocative act or an “act of war”. It is the mediator’s role to ensure that everyone is fully informed about the legal process, but it is the solicitor’s role to ensure that their client’s legal interests are fully protected. And it is as simple as that. Let’s leave the drama where it belongs. On the telly.
Emma Ingham FMCT
