The Family Mediation Pilot 2

July 29, 2013 at 3:51 PM

Should parties be represented in family mediation? Published in The Family Advocate March 2006


There's been a debate happening in Christchurch.

The Family Mediation Pilot scheme which is under way in Christchurch, the North Shore, Hamilton and Porirua refers cases before the Family Court to trained private mediators. The question being debated in Christchurch is: "Is it a good thing for parties to attend pilot mediations with their lawyers, or is it best that parties be unrepresented?".

The debate arises because there was a certain expectation when the scheme was introduced, that the pilot mediation process would be conducted informally and expeditiously, and empower the parties to resolve their disputes on their own. Arguably, the potentially heavy hand of lawyers might be inimical to these goals.

Being both a family lawyer and mediator myself, who has so far conducted about 30 mediations under the pilot, , I am firmly of the view that parties should be encouraged to be legally represented at mediation conferences. Here are six good reasons why mediation works best with lawyers present.

More is better: The more options available to a mediator, the better. If a mediator is mediating with two parties only, he or she has four communication options: (i) to talk to the parties together (ii) to talk to party A separately (iii) to talk to party B separately and (iv) to have to the parties talk to each other in the absence of the mediator. Now add in two lawyers. Amazingly, the communication options increase to fourteen. As well as the 4 options already mentioned there are 10 other options, such as for example, both lawyers talking on their own, or additionally with the mediator, or additionally with their clients but in the absence of the mediator. See the note below for a list of all the options. A mediator may usefully utilise one or more of these available options in order to achieve a settlement. Having lawyers present at mediation, effectively gives the mediator more tools.

I should mention that the lawyer for child always attends pilot mediations. If there are 3 lawyers present, the options are exponentially greater giving the mediator 33 options!

Legal Advice : The object of pilot mediations is to achieve a comprehensive, final and binding settlement at the conference itself. This may later be the subject of a consent order. The parties may properly expect and require to be legally advised before so settling. Having a lawyer present, means that such legal advice can be given on the spot. Without this advice the settlement may be subject to legal advice being later taken. That is an anathema to mediators, as delay in settlement runs the real risk of parties reneging on conditional settlements and hard won gains unravelling.

Support : Family mediation is an emotional and challenging process for the parties. Lawyers can play the very important roles of providing emotional support for their clients, acting as sounding boards and injecting objectivity and realism into their clients' thinking.

Constitutional issues : Even wearing my mediation hat, the right of persons engaged in legal processes to be represented by lawyers, is one I take seriously. Pilot mediations are a legal process. After all, the referrals come from the Court with the hope that consent orders will result. In my view, it is constitutionally unsound for parties to be encouraged to keep their lawyers away from the mediation process, or not to get a lawyer if they have not already done so. Lawyers ensure constitutional rights are protected.

Engagement of lawyers : Mediation is just one part of the family law process. Lawyers are usually an integral part of that wider process. Therefore, they cannot be expected to support the mediation process if they are excluded from it. Worse, they may undermine the process if they are not involved. Lawyers will have faith in the mediation process if mediators have faith in lawyers.

Myth of lawyer hostility : Virtually all experienced mediators, whether family, commercial, employment or otherwise, agree that as a general rule, lawyers engage constructively in the mediation process. Most display an admirable ability and preparedness to put aside the abrasive features of the adversarial system when engaging in mediation. Like all good negotiators, lawyers may powerfully promote the interests of their clients, but in a non-confrontational manner aimed at achieving a practical, fair and sensible outcome. In any event, a good mediator will have the necessary skills to deal with the rare eventuality, of a lawyer hostile to the mediation process.

Note : A and B are the parties, M the mediator and there are 2 Ls (lawyers). I have excluded options which are generally perceived as unacceptable, such as a party talking on his or her own with the opposing lawyer.
(1) A + B + M (2) A + B (3) A + M (4) B + M (5) L + M (6) L + M (7) L + M + A (8) L + M + B (9) L + L + M (10) L + L (11) L + A (12) L + B (13) L + L + A + B (14) L + L + A + B + M

Category: Family Disputes