Law: More mediation, less litigation: Solicitors and their representatives are reflecting on the Green Paper proposals for a change in divorce law, reports Barbara Lantin

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The Independent Online
With just a few weeks until the deadline for responses to the Lord Chancellor's Green Paper on divorce, solicitors and their representatives are reflecting on what the proposals will mean for them.

In particular, how will the increased emphasis on mediation affect divorce lawyers and their practices? Will it lead to solicitors setting themselves up as mediators and referring clients to each other? Or does the proposed dissolution of the relationship between lawyers and divorce have much more serious implications for the legal profession?

Although the paper came out against compulsory mediation, there are fears that it will be introduced by denying legal aid to couples who do not choose it.

The tenor of the Lord Chancellor's thinking is clear. 'Mediation . . . appears to offer a credible method of helping couples resolve their problems with reduced involvement from lawyers and the courts,' says the Green Paper. 'If the Government decided to integrate mediation into a reformed law of divorce and to maximise the advantages of mediation for couples, it would be necessary to ensure . . . that the need for legal advice was kept to the minimum and there was no additional cost to the taxpayer.'

Mediation has long been recognised by most reasonable solicitors as a useful tool in the divorce process. But the Green Paper goes far beyond the status quo. Jane Simpson, chairman of the Solicitors Family Law Association and a partner at Manches and Co in the Aldwych, London, is worried - but not, she insists, for reasons of self-interest.

'The SFLA has supported, and indeed encouraged, the role of mediation in the divorce process since our formation 11 years ago,' she says. 'But we think it is vital that mediation is seen side by side with legal advice. Many people require the support of personal legal advice while going through mediation. They gain confidence from it and are likely to be clearer about the range of possibilities for their particular circumstances.

'The risk is that in future there will be a two-tier system. Those who can afford it will seek legal advice alongside mediation, but those on legal aid will have to wait. And for those who wait, serious things could be left out like pension arrangements and tax consequences. These matters are much more difficult to unravel once agreement has been reached.'

Concerns about blanket use of mediation are shared by Frances Hughes, of Bates, Wells and Braithwaite, who is herself a mediator. Although she has no doubts about the value of mediation, she feels it does not work well in all cases - and her reservations are not confined to those cases highlighted by the Lord Chancellor where domestic violence is involved.

'Mediation works best where the finances are not complicated and where there is enough money to go round,' Ms Hughes says. 'In some cases, there is not full disclosure. If, in the marriage, one party has all the financial acumen, this is unlikely to be reversed during mediation. In fact it is likely to be replicated. A good mediator can deal with this but if each party has his or her own solicitor too, it is an added safeguard.'

There is much anxiety from mediators, as well as the legal profession, that the real motive behind the Lord Chancellor's apparent enthusiasm for mediation is simply to reduce the matrimonial legal aid bill, currently running at about pounds 180m a year.

Certainly the figures quoted in the Green Paper look convincing: pounds 550 per case resolved by mediation, compared with the pounds 1,565 average matrimonial bill paid out of the legal aid fund in 1992-93. But Lisa Parkinson, of the Family Mediators Association, one of the two main regulatory and training bodies in this field, thinks this formula is too simplistic. 'There does seem to be a view that solicitors are expensive and that something which does not involve them is bound to be cheaper,' she says.

'While we welcome the recognition that is at last being given to mediation, we still feel there is a role for solicitors in divorce, especially where non-lawyer mediators are used. The statistics do not seem to take into account the cost of legal advice given in addition to mediation.'

Ms Simpson goes further: 'In many cases, mediation is more likely to be successful where the client also has personal legal advice. In the long run, an agreement is more likely to be reached and therefore the overall cost is lower,' she says.

The Green Paper proposes a compulsory initial interview for those wanting to start divorce proceedings. Its aim is to give legal information and 'explain the advantages of mediation', but mediators and lawyers are anxious about the calibre of those who will be recruited to conduct these interviews, and about the hidden cost-saving agenda to which they will be working.

'They will need to be very highly trained and skilled and I have many questions about how they would be expected to work,' says Ms Parkinson. 'If this interview is a cost-cutting exercise it could turn into a gatekeeping function that would limit access to legal advice for those who really need it. A preliminary interview is bound to create more demand for different services, not less. Will these services be available and have the cost implications been thought through?'

Concerns about restricting choice are shared by Thelma Fisher, of National Family Mediation, which runs just under 60 services around the country.

'We want people to be able to choose whether they want legal advice or mediation or both, and to be able to choose which issues they want mediated and what they want resolved by other means. The intention is clearly to keep within the pounds 180m matrimonial legal aid budget and I don't yet know how they propose to do that while providing a trio of services - information-giving, mediation and legal advice - where they are now finding just one.'

Ms Fisher is also alarmed at the prospect that lawyers who see a slice of their work slipping away will simply switch horses and declare themselves mediators. 'There is rather more to mediation than conducting an interview with two people instead of one. The skills needed in mediation are totally different from those solicitors normally use, as lawyers who have trained as mediators will testify. I am worried that solicitors may think they can become mediators without having proper training and supervision.'

Even training as a mediator may not offer a lifeline for beleaguered solicitors under the new system. If, as many fear, the Green Paper proposals amount to no more than a money-saving exercise, lawyermediators could find themselves undercut by cheaper alternatives.