In the press
Business news (Chamber of Commerce)
October 2006
Published in Family Law - March 2007
Dear Sirs
We write in response to Sue Tilley's article, titled "Providing Legal and Financial Information".
Sue Tilley's research and findings in her article in the January edition of Family Law do not necessarily represent the roles and capabilities of mediators.
A mediator's role is one of neutrality, and whilst not giving advice, they can comprehensively identify and develop options with clients. As the writer correctly identifies, clients under stress can fail to comprehend the difference between advice and information and this can lead to later assertions that the mediator "advised" them to take a particular route.
The study also concludes that women may not have the same level of access to good quality legal advice as men. It may be statistically correct that more women than men are publicly funded. However, our experience would indicate that a substantial number of men choose not to access legal advice during or even at the conclusion of mediation. Usually, these men fall just outside the PF limits and yet cannot afford (or do not wish to take) legal advice. Furthermore, people who pay for their legal advice are no more immune from suffering a series of solicitors within the same firm as are publicly funded clients.
The Form E or a similar version is used widely within the financial disclosure process in mediation, and covers all the information that would be dealt with through the client's legal advisors, had they chosen to litigate.
It was not made clear what the parameters of the research dissertation were. However, with only women being interviewed, it cannot be a fair conclusion that women fare worse than men do in financial negotiations. It is often the case that one party has less knowledge of the finances, and this applies equally to men and women. It may be particularly true if one party is no longer living in the family home that they may have limited access to paperwork and financial information. The financial disclosure process in mediation enables both parties to obtain a current valuation on the joint and sole assets and liabilities, which is key to laying the foundation to developing options for settlement. If there is an imbalance in knowledge between the parties then it is the mediator's task to ensure that this is redressed.
The concept of understanding complex pensions is not alien to mediators, and certainly the onus is on us to ensure that our continuing professional development is up to date and relevant. The UK College of Family Mediators requires practising mediators to gain 10 CPD points annually [not 7as reported] and there is a wealth of providers [including Family Law] who offer training courses to equip mediators with the knowledge, learning and support to enhance their practice. Indeed, diligent mediators can be more informed than their legal colleagues on some occasions - recently a mediator colleague who had discussed the option of a client applying for further information reported that the client's solicitor had not heard of Form P. Mediators regularly explain to clients the benefit of obtaining a report from a pensions expert in complex cases. However, the vast majority of clients will choose not to take this route, citing the cost and time involved as reasons.
Proposals for settlement are contained in Memoranda of Understanding with a view to them being implemented by way of Consent Order, and are checked by the mediator's Professional Practice Consultant. Some services, such as ours, also have a legal consultant to advise on points of law and implementation issues. Memoranda are not designed to be prepared with major issues outstanding. Many services also send out summaries after each mediation session, which the client can discuss with their legal advisor. Susan Tilley expresses the view that mediators should be able to understand whether the legal advice obtained by the clients is correct. It is not the role of the mediator to make a judgement on the ability of the solicitor to provide correct legal advice to their clients. It is quite common for both clients to receive conflicting advice from their respective solicitors.
Despite some of the above reservations, we agree with Susan Tilley that, as a profession, the level of legal and financial knowledge could be improved. To impose a mandatory element of legal/financial training in the annual CPD quota could go a long way to solving this issue.
Yours,
Wendy Dolby-Stevens and Alison Dalley
Arena Mediation Ltd
