We need to embrace mediation

tracy_winstanley1Award-winning mediator Tracy Winstanley explains why ‘We’ve always done it this way’ is a dangerous way for firms to think.

Being passionate about what you do and what you want to do is essential to make a success of any business. However, knowing your market and what your client’s want is also key. Legal professionals, family mediators included, are often resistant to change. I once tweeted a quote I saw that I immediately identified with: ‘The most dangerous phrase in the language is, “We’ve always done it this way.”’

I opened my mediation department in the wake of LASPO, so I had no figures to compare pre-LASPO, although I have seen increasing numbers of mediation information and assessment meetings (MIAMs) since.

How was I able to achieve this?

A crucial part of my strategy for growth was explaining to solicitors (particularly those who did not deal with legal aid) about the changes brought about by LASPO, how that affected them, and how mediation worked and its benefits.

Our service is built on providing a professional, effective and personal service. First, it is essential that parties can relate to their mediator. It is so important at a MIAM to build a rapport with each party. They need to like you. This is all part of our skill set but also requires personality.

Second, you have to identify your client’s needs and be able to meet, even exceed their expectations. We do this by contacting parties the same day we receive a referral; offering appointments within three days; offering face-to-face, Skype, Facetime or telephone appointments; being open late evenings or weekends; communicating by email. Not all firms do this.

Clients appreciate a service that is fast, effective and seamless. Having effective systems in place, a good social media and website presence, and generally being forward thinking will help you be streets ahead. A proper case management system and one which is also paperless (dare I say it) and which can provide regular updates to parties and solicitors will mean clients expectations are managed well.

Converting MIAMs into mediations can sometimes be difficult. However, if you properly explain the benefits of mediation and address clearly any concerns reluctant parties may have, then I find most are on board. I do emphasise in a MIAM that it is their decision if they want to mediate, because it’s important people know they have a choice. Otherwise, there is a different mindset going into the process.

Reluctance to agree to mediate at a MIAM, can be as a result of one party thinking the other won’t change their position. I find it helpful to let them know that in my experience often people are more receptive to information they receive in mediation and more likely to focus on the issues, because they are in a neutral environment, with a mediator who is impartial, and they are hearing the same information at the same time as their ex-partner.

Many in the profession are sceptical about the benefits of mediation, because of lack of knowledge. This is why part of my strategy when I first set out to become a mediator was to educate solicitors. Mediation is not for everyone. Nor does it, in some cases result in an agreed outcome, but it can often narrow the issues even if outcomes are not achieved. I remember someone once saying to me, after many months of correspondence between solicitors: ‘How come my solicitor has not mentioned mediation sooner?’ I couldn’t help but feel that the solicitor had let their client down by not doing so. I am not saying there is a reluctance to refer, but rather a lack of appreciation sometimes in regard to how beneficial mediation can be, and how a referral at the outset should be considered.

Mediation has a long way to go. Improvements and changes are needed to maximise the potential of the process. Resolution’s recent agreement with the Family Mediation Council on conflicts of interest and consent orders is very welcome. If the government is committed to recognising the importance of mediation and investing in it, I’d like to see free legal advice offered to any eligible party who has attended a MIAM (not after a first session). I also think the funding of a non-eligible party should extend to two mediation sessions, not one.

The government should also pay mediators in a way that reflects, rather than undermines their expertise and skills. In my opinion, we should be able to claim enhancements for cases where we have had to conduct a ‘shuttle’ mediation due to domestic violence, or in other complex cases, say where a party has learning difficulties, is vulnerable, or has mental health issues. I also find it staggering that the government does not pay for sessions which involve direct child consultation. This change must be made.

Despite scope for improvement, I am forever optimistic that more positive changes will happen for mediation.

Tracy Winstanley

About Tracy Winstanley

Tracy Winstanley is head of mediation at Heaney Watson, and winner of the 2016 Legal Aid Lawyer of the Year award for family mediation

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