Mediators Drafting Consent Orders

The Family Mediation Council is consulting (closing 31st January) on whether, contrary to the present rules governing mediators, we should be allowed to draft consent orders. Mediators are governed by those rules whatever our professional background. For those who are lawyers there is now a SRA guidance that says that one lawyer who has mediated between a couple can draft a consent order. The conditions imposed by the SRA are such that I struggle to see how any sane lawyer would be able to say hand on heart that they were satisfied. However the guidance is there.

As a lawyer, albeit now only mediating, I feel very strongly that the drafting of a consent order is not a neutral act. How many times when matters are agreed through solicitor negotiations does it only emerge when drafting that there are knotty details requiring further negotiation? How a mediator could deal with such whilst remaining neutral escapes me.

What really concerns me however is that, whether clients elect to avail themselves of it or not, they really need individual advice. One thing that is absolutely clear is that no mediator can give such advice. We give legal information. Indeed my mediation clients probably have it coming out of their ears by the time that we have finished. What I can’t do however is give that nuanced advice which only a client’s own lawyer can. My legal information itself must be neutral.

We mediators must all have experience as I have of clients settling deals in mediation which are then re-visited once legal advice is taken. Whilst  I do my level best to persuade my clients to take that advice before they reach that stage so that it forms part of the mediation, they don’t always do that. As I can at present refuse to draft an order, if they want professional help with it, they have to seek legal advice. It is vital that there is a separation of the advising and negotiation roles. If mediators can draft orders the likelihood of their clients actually seeking independent advice will diminish.

Aside from what I regard as crucial principles, one of the findings of Mapping Paths to Family Justice was that mediation itself works best when it runs in parallel with clients taking legal advice. The roles should be complimentary, not in competition.

In practical terms, how keen will lawyers be to refer their clients to mediation only then to lose their advice giving and drafting roles? The reality is that this isn’t just an issue for mediators. If you read this and are not a mediator but a family lawyer who believes in mediation but want to retain your advising and drafting role, do make your views known to Resolution if you are a member as you almost certainly will be. Resolution is one of the mediation professional bodies who make up the Family Mediation Council. It is ultimately the mediation professional bodies who will decide this point.

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