Common reasons for solicitors not to refer clients to mediation

 
Over the years we have come across a number of reasons why solicitors may have felt unable or unwilling to refer their clients to mediation, so we thought it best to provide some answers.  Do any of these sound familiar?
 
With legal aid I get paid little enough as it is, why should I send my client elsewhere?
 
We understand your frustration here.  Your client is covered with Advice & Assistance, the authorised expenditure isn’t enough and for whatever reason the Board refuses to increase it, and in any event, what you get paid reflects nowhere near what you have had to go through in the case to do the best for your client.  Or you are on a block fee under Legal Aid that gives you the same headache.  Or every week you spend half the day or more in child welfare hearings, again working diligently for your clients, but you are being remunerated in such a restricted manner for such hard work.  Or your legally aided divorce case relates to children but also drags complex finances into the equation.
 
These are exactly the type of situations where referring to mediation can help.  It can give you some breathing space whilst giving your client the benefit of a non-court means to resolve everything, and given the likely save on expenditure, it may even save your client on legal aid clawback at the end of the day.  You might end up being rewarded ultimately for drawing up the resulting Minute of Agreement if mediation was successful, and even if it wasn’t at least the mediation process could have narrowed some issues for negotiation or Proof.
 
I don’t want to lose the client
 
If you refer a case to mediation, the mediator has no interest in taking either party on as individual clients after mediation has ended.  CALM mediators practice under a strict code of conduct and are happy just to hand the case back once it is done.  During the mediation process, if asked the mediator can give only uncontroversial legal information to the parties, but if asked for legal or financial advice the parties will be directed back to their solicitors or encouraged to take independent financial advice.  They will tend to suggest to parties to keep their solicitors up to date with how the mediation is going, and as above, if any agreement is reached then the parties could be asked to go back to their solicitors to iron out a Minute of Agreement or resolve any ongoing court process.
 
There’s a history or allegations of domestic abuse
 
This is a common concern, but one mediators are very much alive to.  These days our lawyer-mediators usually start off with separate mediation sessions, and amongst other things the mediator will go through screening for domestic abuse.  Thereafter it will be an ongoing monitoring by the mediator, and if joint sessions are deemed appropriate but then power imbalances just cannot be resolved, the mediator may terminate the process.  That said, there is absolutely nothing to stop the mediation process from continuing albeit using separate sessions, akin to shuttle diplomacy but on different dates, or using online or caucus mediation as an alternative.  The mediator will think carefully and explore with the parties how the process should be structured in order to make sure all parties are comfortable with the mediation.
 
Any more questions?
 
Obviously there are times where mediation may not be appropriate, and the mediator can assess that at the outset and as the process goes on.  Most times it can work, sometimes it doesn’t, but at least it gives the parties the opportunity to take a bit more control and responsibility for their own lives.  If you have any questions about this, please chat with a local mediator in your Faculty or contact us via the website.
 
For the rules and guidelines in place about family mediation, click here.
 

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