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GAZETTE
APRIL 1987
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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