Mediation and consent orders

child abduction

Along with the decree absolute, consent orders are the traditional end point of any divorce settlement.

As the name implies, such orders set out what each party has agreed to, the terms on which they have consented to a financial settlement. Typically they describe precisely how you and your soon-to-be-former-spouse will divide your assets, whether money or property. They will record undertakings (formal promises to the court) that each of you are agreeing to perform – e.g. to pay certain items or to cover liabilities for tax or obtain the release of a party from a mortgage.

Normally drafting a consent order for endorsement by the family court is a job for a solicitor. Composing any kind of legal document is a skilled job, requiring precision and an appreciation of important legal principles.

But there’s a problem. As any regular reader of this blog will know, legal aid has not been available for most family law disputes for close to four years. The predictable result has been a surge in the number of ‘litigants in person’ – people unable to afford legal representation who are thereby forced to make their own way through the court process.

Meanwhile, at the same time that it slashed the legal aid budget the government began trying to push families into mediation, seeing this process as a cheap, ‘one size fits all’ alternative to the courts. Attendance at a MIAM – mediation information and assessment meeting – is, at least in theory, compulsory for anyone considering taking a family dispute to court. In practice they are still widely ignored.

Inevitably as mediation has begun to take on a greater role in the national dialogue about divorce, some have wondered whether mediators themselves should take on new roles. While some mediators are also solicitors or barristers, legal qualifications are not a requirement for the role, preventing many from carrying out such lawyerly functions as drafting consent orders for clients going through divorce – even if the mediator helped the couple reach agreement in the first place.

But what about those with legal qualifications? Should they be able to do so? According to the Family Mediation Council (FMC), the answer is ‘maybe’. Late last year it launched a public consultation on that very issue.

The consultation paper explains:

“The Family Mediation Council recently updated its Code of Practice (the Code). As part of the discussions when updating the Code, the FMC Board considered the question of whether mediators should be able to draft consent orders at the conclusion of mediations that they have conducted. The old version of the Code was silent on the point, but there has been much discussion in the mediation community recently about whether or not the drafting of consent orders by mediators is currently, or should be, allowed.”

I am sure there are solicitor-mediators rubbing their hands with glee at the prospect of being able to undertake more work in the process and provide a one stop shop for the full service. However before solicitors rush headlong into this they need to stop and think very carefully about the different roles that are undertaken by a mediator and by a legal advisor. A mediator is a neutral person who is facilitating a conversation between the two protagonists and trying to help them reach an understanding.

If they do, then the mediator will draw up a “without prejudice” record called a memorandum of understanding but it is not a binding agreement (the term “without prejudice” refers something which is “off the record” and therefore cannot be referred to in court as evidence of an agreement being reached). The parties then need to avail themselves of legal advice on that proposed agreement and if they are still happy with it, the clients can then confirm that understanding as an agreement and have the consent order prepared.

This is the safeguard that the mediation process provides to prevent one party taking unfair advantage of the other party. I have seen clients who have come out of mediation with an “understanding” but because the mediator was not able to give them specific advice, when I then discussed the pros and cons of what had been proposed, the client changed their mind and we subsequently made adjustments to the proposed settlement to create a fairer outcome. As solicitors we are there to protect our client and to highlight the pitfalls of a financial proposal. A mediator, because of their role as a neutral party will, generally speaking, not be able to do this. It is in that context that I consider it is potentially very prejudicial for a client to use a mediator to both facilitate the discussion and also draw up the paperwork. Yes, you may well be absolutely fine but as the decision to enter into a particular financial settlement may have long lasting implications for you, isn’t it worth getting a second opinion?

Read the Family Mediation Council consultation in full here.

Photo courtesy of ccPixs.com under a Creative Commons licence.

Julian Hawkhead

Julian Hawkhead is Stowe Family Law’s Senior Partner and is based in our Leeds office.

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6 comments

David Burrows - January 26, 2017 at 1:14pm

Julian – Isn’t one problem in all this that mediation will always be compared with the (often) quick fix FDR, where DJs can encourage parties to agree terms with no cooling off period; and no review of the terms that (in theory) a mediated agreement has when the DJ approves it?

Cameron Paterson - January 27, 2017 at 9:46am

Julian’s response:

“Yes David I think there is sometimes too much pressure on parties to get a binding agreement, whether it is open heads of agreement or a consent order where people under emotional and financial pressure need time to reflect on what they are being asked to agree to. This often puts the “stronger” party at an advantage.”

JamesB - January 27, 2017 at 11:07am

Yes, I agree. When it gets to court a deal is done often at any price and with errors in it. Its usually the price of at least one of the sides being difficult and one of the many reasons why it is better to settle out of court. That said, I don’t criticise the judges for putting these bad deals together when the alternative is on-going arguing forever at least it begins to put an end to that financial arguing.

Saying that with divorce where children are involved its a bit of a contradiction, hate to get all catholic, but ending a marriage where children is involved is difficult and is dissolving really as the children mean there is part of the marriage that cannot be ended. It is better to deal with that sensibly and I think me and my ex are getting better at that after about 10 years. My father and mother haven’t spoke for about 32 years so we are doing better than them.

Advice on consent orders. It is better to state what will or will not be done. Using terms like best endeavours or will try is a cop out by the courts and will end up causing a lot of pain, speaking from experience. So, don’t say in it how something will aim at being done, state what will be done on pain of penalty. The point is aiming for a clean break. That also includes an argument against top up maintenance orders or inability to take to the csa. Either side should be free to take to the csa after a year without dodgy lawyers words in the order topping up maintenance, a divorce should be an end in terror not a terror without end (German saying funnily enough shardenfroid or something but the point is valid).

JamesB - January 27, 2017 at 4:05pm

p.s. I am not catholic, although I am now married to one.

JamesB - January 27, 2017 at 4:09pm

I do frequently go to catholic church and get blessing but don’t take communion there, only take communion from Anglican church, our son is christened catholic, upon our agreement that he make the decision on whether or not he gets confirmed or not and if so which church. See, is possible for men and women to negotiate and do deals with each other to each others satisfaction 🙂 happy weekend all.

JamesB - January 26, 2017 at 8:31pm

If someone holds a gun to your head and demands money then I would not call the act of giving it to them donation by ‘consent’ as it says here. As with so much of this law in E and W it is in need of reform both in terminology and substance. Financial order but calling it a consent order is another sick joke.

Had to write as reminds me of an encounter with a judge. He said “why did you sign the order if you had no intention of sticking to it?” anticipating the question in advance I said “because you told me to”

He let me off that time and let me off, they are not without a sense of humour these people (Judges) but I suppose they would need go have a sense of humour given that the law in E and W it is in need of reform both in terminology and substance please, although I think I may have said that already above.

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