The Gazette 1987

APRIL 1987

GAZETTE

lives and, for couples with children, to co-operate as parents. " It may seem unlikely to you now that this will happen, but it is a benefit that does sometimes come out of the process." The full text of the note I give my clients runs to three pages of print, and is not easy reading, but a cou- ple who have read it should come into mediation with a clear picture of how the process operates." I hope the foregoing precis is equally clear. As the note indicates, an infor- mally worded record of what the couple have agreed will be the end product of our work. No two agreements are the same: the essence of a mediator's work is that each bargain is unique, because it gives effect to the specific needs of the couple who have negotiated it. However, the draft I prepare and send to my clients for their approval always in- cludes one standard clause, which is the second document I want to quote, and which runs as follows:- "This note of understanding forms part of the mediation pro- cess, which we have agreed is an 'off the record" and without prejudice process and it does not have any legal effect. We want our lawyers to prepare a legally binding agreement to give effect to what we have agreed bet- ween us, as set out above, and to include in it any standard pro- visions normally included in separation agreements, such as agreement to live apart, agree- ment that neither of us should be responsible for the debts of the other, and any other provi- sions our lawyers agree are nor- mal in such agreements. If our lawyers should disagree on the contents or wording of the for- mal agreement, we will aim to resolve the disagreement together or with our mediator. Until a formal agreement is prepared by the lawyers and signed by both of us, neither of us is bound by this agreement, and in any event neither of us will produce it in evidence in any Court." When the couple bring the docu- ment to their lawyers, the mediator's work should in most

cases be pretty well complete. However, the lawyers may have questions about the bargain the couple have reached, and they may want to raise those questions with the mediator, as well as, or instead of, with their client. This brings me to the second part of my friend's question, namely, how should mediators and lawyers co-operate, in the interests of the clients they both serve? First, I suggest that a lawyer dealing with a family break-up should always have in his mind the question whether his client's in- terests might be better served by trying to resolve the problem in mediation, rather than by going to law. If this seemed right, the lawyer's first letter, instead of threatening a writ, might say, "Without prejudice to my client's legal rights in this matter, she feels that her interests, and those of all the family, might best be served by the disagreements between you and her being resolved in media- tion, and she is willing to try this process, if you agree to co-operate in i t ." Secondly, I think lawyers should bear in mind that, if mediation is to be tried, the sooner this is done the better. The prospects will be much better if the couple meet their mediator before the threatening let- ters have begun to fly or the writs to issue and before they have dug themselves into their trenches and settled down for a long war. It is never too late to try mediation - I have worked with couples who had been in and out of Court for years and also with couples whose litigation stood adjourned and some of them have reached good agreements - but if it is to be tried, the sooner the couple start, the better, in most cases. Thirdly, I believe that where a mediator is involved it will be useful if, at the beginning of his work, the lawyers for both parties indicate how far they want to be kept in- formed of progress in the media- tion. I think it is usually best that the lawyers be involved in the pro- cess only to the extent that their clients may refer to them for advice during mediation but, if a lawyer wants to be kept up to date about progress in his client's mediation and if the couple agree, there is no problem on the mediator's side in keeping him informed.

Finally, I would urge caution on the part of a lawyer, when review- ing a Note of Understanding with his client. A conscientious lawyer, intending to do his duty to his client and to ensure that the bargain he makes serves what his lawyer sees as his best interests, may run the risk of actually harming his own client and the entire family if an intervention from him leads to an agreement collapsing. A lawyer will give his client the best advice he can, but, when the client has gone through the media- tion process and has reached an agreement, I feel the lawyer should approach that agreement with some respect. It may have been reached without legal advice and the lawyer may feel that his client has made excessive concessions in particular areas. However, it is an agreement the client has negotiated freely, it represents a bargain he is prepared to live with, recognising the needs of other members of the family, and it will affect all the family, perhaps in many and profound ways. By helping the couples we work wi th to avoid conf ront a t i on and to resolve their problems co- operatively, we also relieve their lawyers of a weight of sad, depressing wo r k, which the legal system is not geared to handle; which lawyers undertake reluctantly; for which they are, certainly in com- parison to most other legal work, poorly rewarded; and where their very in- volvement, however well- intentioned they may be, may force their clients into hostile camps. If a lawyer has reservations about his client's bargain, I suggest his advice might take the form of ensuring that the client appreciates the consequences of what he or she is proposing to do and the dif- ferences between the mediated agreement and a likely Court deter- mination. To put it another way, I would hope the lawyer might frame his advice in the form of " I do not think

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