What role does a solicitor play in the mediation process?
Whilst there is a clear distinction between the role played by a solicitor and by a mediator, there are a number of ways in which the two roles complement each other.
I consider the possibility of a referral to mediation whenever I meet with a new client and discuss with the client whether or not a referral is appropriate in the circumstances of the case. I have found that there is an increasing awareness of the benefits of mediation and, unless there is a clear indication that mediation is not appropriate, that clients are generally very receptive to the prospect of a referral.
The benefit of each individual receiving legal advice prior to attending mediation is that they should both then have an idea of the general parameters within which a settlement is likely to be reached. The mediation process is facilitated by the couple having a clear understanding of the law, as any misplaced assumptions can be adjusted at an early stage. An individual's perception of what 'fair' might mean needs to be informed by what the law is, as all mediations take place in the shadow of the law. An early meeting with a solicitor will help each person to clarify their priorities and also to identify the areas where they are prepared to compromise.
I work with my client throughout the mediation process, providing any advice and answering any questions on a 'pay-as-you-go' basis. A particularly important time is after the exchange of financial disclosure. I review the disclosure and, if appropriate, advise my client to ask for any additional relevant documentation that might be required in order to clarify the position. When the disclosure exercise is complete, the couple can have confidence in the information upon which their discussions are based. If they have both received legal advice and are working with an experienced mediator, they can have confidence that the eventual proposal will be within the arc of outcomes that would be ordered by a Judge of the Family Court.
When a settlement has been reached, the couple will each then return to their legal advisors, who will provide specific advice regarding the terms that have been negotiated and record the agreement in a Consent Order for consideration by a Judge of the Family Court. If the couple has both had legal advice throughout the mediation process, then the drafting of a Consent Order and supporting documentation should be a straightforward and non-contentious process. Some mediators are now able to draft the terms of a Consent Order for the couple, but the mediator cannot give legal advice at any stage. More commonly, a mediator will record the proposal within a Memorandum of Understanding which then forms the basis of the eventual Consent Order.
Taking legal advice from a solicitor throughout the mediation process can not only help protect your interests but ensure you have you a clear understanding at the outset of the parameters in which a settlement might be reached and exactly what is happening at each stage of your separation.