Mediation: finding a better way forward

00:00:07 David Lee, Host

Hello and welcome to Podcasts by Brodies. I'm your host, David Lee, and in this episode we dive into the world of mediation and explore how it offers a more flexible, cost effective and less adversarial way to resolve disputes outside the courtroom, especially today, we're talking about family law.

I'm joined by two guests. Jacqueline Stroud is a partner in Brodies Family Law team and an expert in mediation and collaboration and Ewan Malcolm is a highly experienced award-winning mediator who is currently chief executive of Relate London, Northwest and Hertfordshire. Welcome to you both.

Ewan, if I can start with you, we like to start these podcasts with definitions, what do we mean by mediation in a legal context?

00:01:00 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

David, thank you for your introduction. The mediation that we're talking about in family settings is a way of having a series of discussions which will result in a mutually acceptable way forward for that family. It's conducted in a confidential bubble and the proposals that are result from that conversation are non-binding until they're made into a formal legal agreement by the lawyers. The process is voluntary, people come to this without being forced. They might be encouraged, but they don't have to come into it, and it allows people to focus on what they really need for their families in the future. It's a forward-looking rather than a backward-looking approach to resolving disputes so that's essentially what we're looking at for mediation. It's a voluntary confidential, non-binding process which allows people to come to their own decisions about arrangements for themselves and their families.

00:02:11 David Lee, Host

Thanks Ewan – very clear. Jacqueline, what are the main differences, given what Ewan said, between mediation and a traditional litigation approach?

00:02:23 Jacqueline Stroud, Partner

Thank you, David. I think the main difference is that the parties here have control of the process and of the outcome. As you said in your introduction, litigation is an adversarial process and the whole process encourages you to see the worst things possible about one another to achieve your desired end. It's maybe an overused word, but I always think mediations are a much kinder way of approaching matters. It's unusual for people five years after a contentious litigation to think that it was money or time well spent, I think most people would do it differently with hindsight. You avoid a situation where you have a third party making a decision about your family and your children when they don't know you and they don't know your children, and they usually have a really short time frame to do that as you may only get 20 minutes in front of a judge, so it's a process that you can have control of and it enables a family to fashion solutions best suited to you and your children.

00:03:39 David Lee, Host

Ewan, can you just tell us a little bit about the nitty gritty? How does the mediation process work and how and when might someone decide mediation is an appropriate way forward in a family dispute?

00:03:56 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

So typically, in a family setting one or other of a couple might consult a lawyer in for initial information and they might then approach a mediator to convene a series of discussions. It's important that both people are willing to come to mediation. So, the first thing would be that the mediator would contact both to ensure that that voluntariness was there and then, assuming that everybody was fine with going forward with mediation, the mediator would set up individual private meetings with the people involved. They can often be arranged digitally for convenience and would allow people to firstly hear about what's going to happen so that the mediator can explain the series of meetings and then secondly, to discuss what needs to be sorted out. Essentially setting out the things that are required to be resolved after those private meetings, and if everybody thinks mediation is the right way forward, and sometimes it's not, then an initial joint meeting would be arranged. Typically, if it's a couple or three people in a room, it may be that both people have also got lawyers and in family settings it's not usual to bring the lawyers along. However, it's very useful to have the lawyers in in the background.

At that first meeting, a joint agenda would be set and then people would work out what they need to find out and what they need to bring into the next session. Then there will be a series of meetings over a period of a month or so, which would result usually in people coming up with a set of proposals. The mediator would write those up and that would be taken off to the lawyers to implement as a formal agreement.

00:06:06 David Lee, Host

Thanks Ewan, really clear. Jacqueline, you talked a little bit about the differences between mediation and litigation, but what about the benefits? Ewan talked about putting the decisions back in the hands of family members, you talked about it being a kinder way. What about the flexibility it brings? What about the cost? What benefits might mediation bring?

00:06:36 Jacqueline Stroud, Partner

Mediation is an entirely flexible process, unlike if you choose to litigate in court. Courts are busy, overworked, you might not get a hearing for several months or it can take a year or so for a final decision to be taken. Mediation can normally be arranged at short notice. I often see people within days of them first contacting me for the for their intake appointment. So, it's a very flexible process if you need to meet on a Saturday morning, you can do that or later to fit in around childcare commitments or in the evening that can happen. Cost wise, and inevitably cost is important in these things, it is far more cost effective than litigating. I've litigated in cases very late on in the process where couples have already spent six figures each and if they had come to mediation that at an earlier stage they could have avoided considerable cost. Cost is an interesting thing because I always think there is the financial cost of litigation, but also the emotional cost of litigation and they are as important as one another. I want to be careful to say that mediation isn't an easy option, it's a courageous option. You're often at the most difficult, most emotional point of your life and it's hard to take brave decisions or to sit in the same room as someone that may have hurt you. So, I think for flexibility and cost mediation would always win hands down on both of those points.

00:08:26 David Lee, Host

Ewan mentioned before that it's not common for the lawyers necessarily to be in the room, but obviously the lawyers will still be involved in finding out what's going on, drawing up the final agreement and so on. What's that dynamic? What will a lawyer be doing in the mediation process and how does the dynamic between the mediator and the lawyer work?

00:08:53 Jacqueline Stroud, Partner

So if you've already instructed a lawyer, and most parties that come to mediation have usually had an initial meeting with a lawyer and the lawyer has suggested mediation as a sensible way forward. Lawyers in Scotland are obliged to tell their clients of the alternative forms of dispute resolution available to them, but once the matter has been referred to mediation ,and both parties have to agree to mediate, it’s a mutual process. The lawyers will remain in their client's corner, but they won't be involved in the actual mediation process. I'm an accredited lawyer mediator and as a qualified lawyer, I've been a lawyer for more than 30 years, I know how the law applies in different cases.

Sometimes there's a black and white answer to a legal question, which I'm able to deal with, but a lot of family law is very nuanced and quite often in a mediation process. I will say to parties that there's a range of outcomes here and at this point it might be sensible for you to speak to your lawyer about these points, and quite often will end a mediation with both parties agreeing that they will go back to their lawyers to take legal advice and then come to the next session armed with that legal advice. It's important to appreciate that although I'm a lawyer, I'm not acting for either of the parties in the mediation because there would be a conflict of interest. So, what I would hope that after a series of mediation sessions that I would prepare a mediation summary that sets out what's been agreed between the parties, but that agreement is not in any way legally binding until it's been since checked by the lawyers and a formal agreement is entered into.

It's interesting, whenever I first speak to parties about mediating and I explained that we're going to have this confidential discussion, it's not legally binding. I always think, as I explain it, it sounds as though it won't work, but it does. There is a high success rate. Ewan, you’re aware of the stats with mediation and how successful that is, and you could maybe comment on that.

00:11:16 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

Absolutely, Jackie. Over the English-speaking world research regularly shows that at least 75% of the cases that come to mediation, typically a lot higher than that, end up in a resolution which is mutually acceptable. So I know that if people decide to come to mediation, three out of four times they're likely to resolve the issues in front of them. And even the people who don't often resolve some of those things, they come to conclusions that will work for them in bits, and then some other process may have to sort out the other bits. I suppose it's the intangible things that can be improved if people have, for the first time for a long time, sat down and had a conversation which is not escalated into our huge argument. They've focused on the important things to them, for instance, children, and they've had a proper discussion about arrangements for those children that can make such a difference. It can be a platform for the future.

00:12:25 Jacqueline Stroud, Partner

I think that's right, Ewan. I think when people have bought in, they've bought into the solution that they've crafted together, they tend to stick with that solution and the courts are limited in the orders that they can make. The advantage of mediation is crafting a solution just particularly suited to your child and their needs, or your needs and your financial needs going forward. So, we have a lot more of an ability to be creative in the mediation process than a court does. A court make quite specific orders, but they're not known for their creativity.

00:13:09 David Lee, Host

Ewan, I was going to ask earlier on when Jacqueline was talking about that relationship between the lawyer and the mediator, you used to be a lawyer. Now you're working as a mediator. Do mediators in this context have to be former lawyers? Is that always the case?

00:13:29 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

No, you don't have to be a lawyer, although it certainly helps when assisting parties in quite complicated areas. I have to say, family law is a very complicated area, so someone who has a background in that area knows the geography and will be able better to assist people. Especially at the latter stages of mediation to work out if the solutions they're proposing will fly and that's important because lawyers, if they're advising each of the parties, don't want to unravel everything that's gone into to a mediation proposal, but equally it needs to be within that range that Jacki was talking about before, it needs to be a range that would likely be perceived by others, for instance courts, as fair and reasonable in the circumstances. I've seldom come across lawyers who would say there's a definitive answer to most things, they need many hands on the one hand, and on the other. What mediation helps people do is craft a solution that is going to work for the unique circumstances of their family, because everybody's family circumstance is different.

00:14:50 David Lee, Host

Has it helped the relationship between you two that both of you have had a foot in both camps? Jacqueline, you're a lawyer, having gone into doing some mediation and Ewan likewise he's more on the mediation side now. Has that helped in your relationship that both of you have got an understanding of the law but also quite a deep understanding of mediation.

00:15:13 Jacqueline Stroud, Partner

Undoubtedly, for me, and actually interestingly, I think it's made me a much better family lawyer. The mediation training made me more able to see things from both sides, and I've become less of a fan of the adversarial system and trying to sort out it out. Some of the child law issues have got complexities undoubtedly, some of the issues that I mediate in are very complex involving the difficult taxation implications, valuations of family business. Really technical things. So, I think for me to mediate effectively I do think I need my law degree and my 30 odd years of family law experience to make me a more effective mediator. But yes, the two sit very well together.

00:16:06 David Lee, Host

Ewan, let's get down to some nitty gritty again. If you are going to take part in a mediation session, how do you prepare and how much are you thinking about the issues that are likely to come up?

00:16:26 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

From the mediator's perspective, in comparison to a lawyer, your responsibility is to remain impartial and that means that, unlike lawyers, you don't tend to spend a lot of time pulling out facts and figures from the people who are coming to mediation. What you're trying first is to set up a situation where people will feel comfortable. So typically, people will want to hear from you. How you might interact with them and then where they might come together and that you want to ensure that people are going to feel relatively safe in that environment that they are able to speak and be heard when they say important things and that they will be able to feel that they can make good progress. Things won't escalate into a big argument that they will move forward when they are involved in this discussion.

I'm thinking about the people that are in front of me and I'm thinking about what it is that they need and want from this process and that, I suppose, flips to what I'd say to anybody who's coming into mediation. How do they prepare themselves to make the most of this opportunity? The first bit is to ensure that they've gathered as much information as is necessary. So typically, if people coming to discuss financial matters, it's important to do the legwork and mediators can help with that and to ensure that if there are arrangements for children currently that they have, have that clearly set out so that they can both come into mediation can work from that base. That's the rational bit. I also recommend that people ensure that they are in an emotional setting where they can have a proper discussion, a discussion that is going to take them forward, and sometimes that's really hard because it's desperately difficult when people are separating you go through a roller coaster of emotions and sometimes people are just not ready early on. So, I would occasionally suggest to people that maybe others like a therapist, a counsellor might help people have that emotional resilience that would ready them to come to a difficult conversation.

The third and last bit which the mediators can encourage that the party's lawyers to do is to think about priorities. I'm really interested in hearing what people really need, what's the underlying interest that they're looking for rather than the kind of position that they might advocate in the court or in positional negotiations. So, what are the things that would meet your needs? Also, here's the key bit that I say to anybody who's negotiating, what do you think the other person needs and wants? Take some time, even though it's difficult, take some time to put yourself in that other person's shoes, and in fact, you're usually ideally placed to do that because you've had an intimate relationship with that person. You know them probably better than most other, even though they things may have changed recently, so try and work out what they're looking for so that in mediation there can be some overlap because that's where the outcomes will be best. If people can find something that will work for both.

00:20:02 David Lee, Host

Jackie, did you want to come in there?

00:20:04 Jacqueline Stroud, Partner

I just wanted to pick up quickly on what Ewan was saying about being ready for mediation. I have almost exclusively positive outcomes in mediation, it's a brave thing for me to say, but if we don't get everything resolved, we certainly get much further along the road to sorting things out. The one thing that can cause a difficulty, I think, is when a relationship breaks down people can be on a different place on the emotional curve, and sometimes if you're still coming to terms with the breakdown of your relationship, it can sometimes be too early to mediate because you're not best placed to take decisions going forward, so I'm always mindful of that. As we've said already, mediation requires both parties' agreement, but you often can get into mediation session where you realise one person is much more emotionally vulnerable than the other person.

00:21:02 David Lee, Host

Ewan, we've touched on a number of these before, but I just wonder if you can summarise as you see them, the overarching benefits to couples who are separating and using mediation?

00:21:16 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

So firstly, I think the big benefit is that you're in control of the outcomes that are going to take your family forward. You have absolute control because mediation will work if everybody agrees. If you don't agree with the proposals, then there are no proposals that are going forward, and you would take it to some other process. The second bit is that mediation can be far more flexible about those outcomes, as Jackie described, courts only have one tool they can make orders about what you should do and what you shouldn't do.

In mediation, you can talk in much more detail about how those things are done and where they're done over a period of time. The last bit I think is that you can understand in more detail where the other person is coming from because you've had a series of discussions which aren't at arm's length. They aren't a series of letters between lawyers or a series of hearings in court. You've actually had a direct face to face discussion moderated by the mediator that's resulted in these proposals that will take you and your family forward, and that's a great base on which to, I suppose, live the coming years with whatever you've decided. So, I think those are the big benefits that we would get from family mediation, and I've seen that so many times.

00:22:55 Jacqueline Stroud, Partner

I was going to say, particularly with people who have children, whether they're young children or teenagers, your lives are going to be woven together. Ewan and I have talked about a very lovely person who trained us, trained us both at mediation and I remember her saying in my very first mediation training session that she once asked a client what they wanted to get out of mediation and why they were attracted to mediation. The client had said that he wanted to be able to dance with his wife at their daughter's wedding and I think that is a powerful thing.

If you enter a process that encourages you to see the worst possible things about each other, perhaps things that you don't even really believe or think but you feel as the ante is upped and as the litigation gets more and more intense. You’re causing permanent damage to important relationships. If your children are young, you probably still have their first day at school, you'll have graduation, you’ll have the nativity play, you will have weddings and perhaps grandchildren and damaging that relationship by a needlessly adversarial process is not the right thing for your family. And most people, I think, would think that after having been through the process, I think you get caught up in it and the need to win and my experience of being of a litigator and a mediator is that it's very rare to walk out of court with a client punching the air thinking they've had a total win, most people come out feeling equally disappointed is my experience.

00:24:41 David Lee, Host

Can you describe, Jacqueline, some of the scenarios that you've come across maybe a few times where mediation has really been a clear help in challenging family cases?

00:24:56 Jacqueline Stroud, Partner

Numerous cases, I mean, we deal with a wide range of issues I've debated about which school children should attend, pensions, the valuation of family businesses, relocation, children's special educational needs, just a whole range of things. People are quite often locked in litigation and not looking at the bigger picture and, as Ewan said, when you listen to the other party and hear what they have to say there can be movement. I've sat in mediations and for the first hour and a half thought I don’t know how I'm going to see a way through this, but sometimes there's just a glimmer of light where someone can say, when it seems fairly adversarial process and someone will say, but you're a wonderful father and just the slightest movement can have a snowball effect. It's listening to what's important to the other person and trying to mutualise and that's easy to use in children.

Both people generally want the same outcome, they both want the other person to have a nice enough house where the children can come and stay. Although they will seem to be at loggerheads, they often have much more in common and our job is to tease out and find out where the where their interests are and where they overlap.

00:26:30 David Lee, Host

Really interesting that idea of the glimmer of light is an interesting idea that you can talk for a long time and you can't see anything and then suddenly you head for the light. It's not all plain sailing, there are some challenges. What are the most common challenges that you see as a mediator in family law?

00:26:54 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

The first one is the decision to mediate. It feels often as if it's a brave and difficult thing to sit with your ex in the same room and talk about the most important things in your life. Wouldn't it be just better to put it in the hands of somebody else who'll tell that ex that you're completely right than they're completely wrong? The reality is that that will very unlikely happen and it is a brave step to move forward with mediation. Once you get over that, I feel as a mediator, it's more likely than not you that some goods solutions will be found. However, it's still hard work.

The second challenge is to persevere, to stick with this and to trust that the mediator will hold the process, ensure that it's forward moving, that it's safe and that you have time to be heard and hear.

The third challenge for anybody in mediation is to acknowledge what that other person is saying if there is something that resonates with you, because often when people have had an unhappy separation or even just a moderately unhappy separation, it's difficult to say that you’re right and this is something that's important to us both and I can see that you're hurting about that or it's really hard for you. That's vulnerability in mediation, which is possible because remember it's non-binding. It is a without prejudice environment where we're not going to be held to account because of what you've said. That then brings the challenge to think about the future rather than dwell on the past and that past can sometimes be hard, and it will influence how you feel into the future. The challenge I think people struggle with and often can, if they stick with the process, overcome is to trust that if you look to the future, you'll get better outcomes.

00:29:26 David Lee, Host

Finally, I'll come to you first Jacqueline, then back to you Ewan. How widely are we seeing mediation used in family law now? Would you expect to see it become a more common choice in the coming years?

00:29:43 Jacqueline Stroud, Partner

I do expect mediation to become more popular. I think the courts are slowly starting to encourage parties to attend mediation. The courts have huge backlogs, and litigation is incredibly expensive. The legal aid used to be more widely available for family matters but it's becoming less and less so. It's hard to get legal aid solicitors and my experience would lead me to think that yes, over the coming years it will become more and more popular, it's a kinder way to do things, it’s a more cost-effective way and as we've said it, you can fashion it for your own family. Courts are adversarial and yes, mediation is the way ahead.

00:30:39 David Lee, Host

Ewan, a final word from you?

00:30:42 Ewan Malcolm, Chief Executive of Relate London North West & Hertfordshire

So, we know that, again across the English-speaking world, only about 5% or usually a lot less than 5% of cases that are started in court end up in a full hearing before a judge. So that's a huge majority are in some way resolved by negotiation or giving up or even just sort of forcing things together.

Mediation provides a much more effective way to find solutions that are tailor made for your family. I've practiced in New York State and I now work in England, those jurisdictions have adopted mediation and taken it as part of the way things are done here. I see that progress having started mediation in Scotland back in the 90s, I see the progress towards embedding mediation in the way that we resolve disputes in Scotland, and I think that's the direction of travel. People will be expected to take control of their own outcomes to make their own decisions, especially for their families, because they're the experts in their own families and I think that is the place that mediation is already and will continue to find its place in this in this jurisdiction.

00:32:06 David Lee, Host

Thank you very much indeed to Ewan Malcolm and to Jacqueline Stroud for their great insights today about the use of mediation in family law. A kinder, more courageous way of finding a way forward that focuses on the future as Ewan said, and doesn't dwell on the path.

This has been an episode of Podcasts by Brodies where some of the country's leading lawyers and special guests share their Enlightened Thinking about major issues and developments in the legal sector and what they mean for organisations, businesses and individuals across the UK economy and wider society.

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