For all those of you who are scratching your heads and wondering what on earth I am talking about, I should explain what shuttle mediation is.

The answer lies in the name. It is a form of mediation where the mediator goes backwards and forwards betweeen the parties rather than work with them in the same room as in the usual family mediation model. Another important difference is that, just as in a commercial mediation, the mediator will say things to one party which the other does not hear and can hold things said by each party without necessarily sharing them with the other.

The general practice in family mediation is to work with a couple in the same room when there is self-evidently total transparency as to what is said by the mediator and the clients.

The reality is that the models and methods of family mediation evolve in order to meet changing times and needs. If the clients live in different countries, the mediator may have to use Skype. I guess that many of us now use email to a lesser or greater degree. That may, for instance, be between sessions on a discrete point. I helped a couple to agree complicated Christmas holiday arrangements that way.

Shuttle mediation is controversial as, in using it, one loses the dynamic that comes from working with a couple direct, the dynamic which frequently leads to constructive communication and negotiation. One has no opportunity to work directly with a couple on improving communication. Indeed it can be, and is, argued that in using the shuttle model, one is reinforcing the clients’ inability to communicate directly-particularly important in children cases.

However it does offer the possibility of using family mediation in those extremely problematic cases where the relationship between a couple is such that they cannot even be in the same room together, let alone engage in any meaningful interchange, no matter how skilled the mediator. Getting such couples together can have a very negative effect and make a bad situation even worse. It is possible, working with each separately, to shuttle between them and to help them to craft practical contact arrangements. One thing that assists is that the mediator can be much franker in the giving of legal information to each separately than she or he could be if speaking to the couple together.

This does’nt just apply in children cases. I have used the method in financial cases where there is an impasse over one point, particularly when the only alternative is that a couple will lose the other proposals which they have already discussed if they fail to resolve that one remaining issue.

As we family mediators are increasingly faced with difficult cases, shuttle mediation does offer the possibility of mediation where one might, otherwise, assess a case as unsuitable.

I fear, based on my own experience as a family mediator and on conversations with other mediators and lawyers, that there are, at present, many divorcing couples who are leaving unresolved financial issues. Those issues still remain however, lurking, just like an iceberg, below the surface of every day life with a tremendous potential for future damage; if not the wreckage of one’s new post divorce life, at the least the making of a significant dent in its structure.

Ask the guy who founded Ecotricity whether he now thinks that it would have been a good plan to resolve issues formally and fully if possible at the end of his marriage well over 20 years ago and before he founded the company. I don’t know anything about the details of the case, but I do know, from press reports, that a financial application has now been made and that an attempt to strike it out was not successful.

People leave the formal resolution of the financial side of their marriage for a variety of reasons. I guess that one of those has always been a fear of the cost of sorting things out. However that not only leaves open the entitlement of both people to pursue a claim at any stage in the future unless he or she has remarried without making an application, but also means that resolution further down the line can be  even more costly. Whether as a family mediator or a lawyer, one is faced with the task of trying to unravel post separation contributions, let alone helping a couple to  try to achieve any fair balance which relates to the marriage itself given that a court  has to consider the financial circumstances of both people now.

As a family mediator, I have come across really difficult situations. Pensions for one will probably have increased in value signoificantly due to contributions made in the many years since separation. A partial settlement may well have been made at the actual time when a couple split up. It always surprises me that men and women  happily divide up the proceeds of selling a house with substantial sums in excess of half being paid to one of them but take no steps to record that that is intended to secure a clean break.

How can one measure the undoubted costs of sorting that out at the point of division against the distress, insecurity and substantial cost of dealing with an application made many years down the line when you suddenly realize that there is in fact no clean break?

So, in order to ensure that your future, whatever else it holds, has no such icebergs, do seek help now. Family mediation offers a cost-effective and relatively quick way to achieve a resolution. Although there will also be legal fees involved to cover the costs of obtaining advice and any eventual court order, the total costs will in no way compare with any costs of sorting things out, maybe decades in the future, aside from the disruption to your future financial arrangements.

The last year has been a momentous one in the world of family law, latterly with public funding (legal aid) effectively ending for private family matters, whether involving finances or children, as of the beginning of this month. It is still available, subject to meeting financial criteria, if there is domestic violence evidenced when applying.

The reason for this is financial. There may indeed be a wider agenda over the long term, that of removing private matters from the civil courts- who knows?

What is certain is that the effects will be felt by ordinary people all over this land with the fallout inevitably affecting countless children.

Family mediation is the answer we are told. It simply isn’t in every case. Also it’s effectiveness is often reduced when people can’t obtain legal advice to assist them as they go through the process. There is still legal aid available (for those who qualify financially) to cover the cost of family mediation with a very low fixed fee paid to lawyers to give advice and to assist with obtaining any court order. Just how much advice can be given within the financial constraints applying remains to be seen.

Having run a legally aided family mediation service for a number of years, I walked away from that quite a while ago electing simply to do privately paid work. The level of bureaucracy is high and any mediator doing legally aided work knows that there is a tipping point which means that the more sessions that you have after that has been reached, the less profitable the work actually becomes.

The irony is that, whilst the government pins so much on mediation, the changes which have been introduced have left a great many managers and owners of long established and good family mediation services feeling very concerned about the future.

That is because, with the withdrawal of everyday legal aid, lawyers do not have to refer to a family mediation service for a willingness test. The fee paid for that test, albeit small, mounted up if a service was doing a lot of them. Many services I understand relied on that money to help pay for administration. Without those referrals, the services have to find ways of letting the clients know that they actually exist. That might well be all very competitive- if that is a good model for developing an important service anyway- but many of these services have run pretty much on a shoestring. They don’t often have the resources available for PR and marketing.

Brave new world? I reckon not.

What really caused me concern are the words “Some mediators and solicitors are working together to provide fixed fee packages for mediation which includes legal help and advice”.

I have no problem with fixed fees. They give clients certainty at a time when so much is uncertain and when cost is always a concern. However, surely, the answer there is for the lawyer and the family medaitor to look at setting their own fixed fees by reference to their own businesses, not at packages as is suggested.

I have no problem with the idea of cross-referrals between solicitors and family mediators. Much of a mediator’s work comes from solicitor referrals. When I have mediation clients who have not chosen a divorce lawyer, I often suggest names, as indeed I do the names of possible IFA’s, mortgage brokers, accountants, counsellors and others. I will know something about the case at that stage and will bear in mind, in making those suggestions, the complexity of the issues, the personality of the client and any sensitivities on cost. The end choice of adviser however remains with the client. There is no pressure from me to push them towards a firm with whom I have entered into a fixed fee arrangement.

I wonder whether I am the only person- mediator or lawyer- who struggles with the ethics of this fixed fee package suggestion in what is a government document and therefore imbued with an air of authority?

Mediators are impartial. Clients have free will. If,as a mediator, I receive a referral from the lawyer of one mediation client with whom I have a fixed fee arrangement, just how impartial does that feel to the other client? That client will probably have his or her own lawyer already. Even if not, why should he or she necessarily get on with another lawyer with whom I have a fixed fee arrangement whom I suggest he/she consults? If a package is being offered to just one half of a mediating couple, exactly how fair is that in terms of the costs which each client will pay? How much faith will the client who is not included in the arrangement have in my impartiality? I wouldn’t if I were that client.

If we look at it the other way round, a couple who go to family mediation with neither of them having first darkened a lawyer’s door and arrive at their legally privileged proposals, can’t then both go off to one lawyer with whom their mediator has arranged a fixed fee package. That lawyer simpy cannot act for both of them as there is a fundamental conflict of interest. How does that lawyer advise them both if it is clear that there should be spousal maintenance for a period but the proposals are for an immediate clean break?

I really cannot see how the “package” is supposed to work on any ethical level for a family mediator whose professional obligation is to retain impartiality in relation to the two people who are her clients.

I know that many family mediators are finding that they are dealing with increasingly difficult cases, ones where the clients have little understanding of the real need to negotiate and achieve compromise- as will be the case whether a case is mediated or not- and have not sought (or listened to!) input from their lawyers about what the realistic parameters are. The effective disappearance of public funding for legal representation will mean that many clients will be looking to the mediator for solutions without the benefit of legal advice and, sometimes, without an appreciation of the need for them to take responsibility for their own process.

Some mediators to whom I have spoken recently feel that the fact that more and more mediations seem likely to break down without a “successful” outcome will give family mediation a bad press.

However, that begs the question of how one should define “success”. I have become increasingly convinced over the last few years that resolution for many couples is achieved by them using a mixture of different processes. In mediation, we range from the couples who “get it” and work with the mediator towards an outcome, through those who start talking outside the process because just one session has reminded them of their commonality, along to those who drop out of mediation into solicitor negotiations or, probably more likely, a court application.

My experience, both when I was still practising as a divorce lawyer and as a family mediator, is that the very dynamic of the mediation sesssions shifts the balance so that the couple will be more capable of achieving an agreed outcome somewhere further down the track and outside mediation.

The process itself makes the other person’s perspective come into view, sometimes for the first time. It also makes each person begin to face  realistic options and consider his or her own possible solutions. That means that clients are more able actually to hear the advice which they receive from their lawyers and have a greater ability than they had before the mediation to participate in and understand the divorce process.

I am convinced that, in many cases, “success” (which can only be defined as a divorcing couple both being able to build viable futures apart) will be achieved by mixing up various possible routes to settlement. The client who leaves mediation because he or she is absolutely convinced that there is a judicial magic wand which will assure him/her of a desired outcome, will still remember what happened and was said in mediation while going through the months of a court application and may well be more prepared to listen to legal advice than if there had been no mediation. Those who, months in and many pounds poorer, realise that settlement is the answer, can always consider a return to mediation at that stage.

Mediation can only be judged a failure judged against the sole criterion of whether a memorandum is prepared if we mediators accept the outside world’s definition of success rather than realising that, in some cases, our process will simply be one part of a multi disciplinary approach to settlement.