DR Corner: The Role of the Lawyer in Mediation

Introduction

With the onward march of statutory and judicial engagement, options for non-court dispute resolution (NCDR) can no longer be referred to as ‘alternative’ and lawyers ignore them at their peril. Significant amendments to both the Family Procedure Rules 2010 (SI 2010/2955), with effect from April 2024, and the Civil Procedure Rules 1998 (SI 1998/3132), with effect from October 2024, put NCDR centre stage, with the potential for serious costs implications for those who unreasonably fail to consider safe and appropriate out-of-court options.

Lawyers with little experience of supporting clients in NCDR may be tempted to shy away from it and remain in their comfort zone. However, this can now be detrimental both to their own practices and the interests of their clients. In the family law sphere NCDR includes collaborative practice, mediation (in traditional family, civil/commercial and ‘hybrid’ forms), neutral evaluation (most commonly in the form of the private FDR) and arbitration; it is essential that practitioners understand and can properly explain all of those options to clients, as well as being ready to participate in those processes, where appropriate.

This article focuses on mediation, and specifically civil/commercial and hybrid mediation, deployed in the family law context.

So, what is mediation? What are the essentials of the different types of mediation? How do they compare? And what are the key points that family lawyers need to understand with regard to their role within the mediation process?

What is mediation?

There is no universally accepted definition of civil mediation, but a conventional definition might be that it is a flexible, cost-effective, confidential process which can be arranged relatively speedily, in which a neutral third-party (the mediator) facilitates discussions and negotiations between the parties in dispute within a relatively structured but flexible process.

Mediation is essentially a managed negotiation. Everyone involved needs to understand this and act accordingly. The focus is on meeting the needs and interests of the parties, not determining the rights and wrongs of a dispute. It is about what will happen in the future, not what happened in the past.

It is a process where the parties, guided by a neutral individual, work towards reaching a mutually agreeable settlement. The mediator’s role is to facilitate discussions, explore needs and concerns, and help the parties find a solution that meets their future interests. It is not about winning or losing a positional argument as framed by conventional litigation.

Despite the recent moves towards mandation, particularly in the civil sphere, mediation remains voluntary in the sense that the parties do not have to reach a settlement. They are free to engage and leave as they wish and, at present, the court, even when compelling the parties to mediate, is generally unlikely subsequently to investigate any failure to arrive at agreement.[[1]]

That said, in civil/commercial mediation there is no distinct ‘mediation privilege’[[2]] attached to the process; it is covered by the concept of confidentiality – and the rules on without prejudice negotiation – to the extent the law permits,[[3]] but probably not more, and in spite of mediators objecting, there have been reported instances[[4]] of civil/commercial mediators being compelled to give evidence ‘in the interests of justice’ – a term which contains much elasticity.

In the family law context, in the seminal case of Re D,[[5]] Sir Thomas Bingham MR noted that a ‘substantial and, to [his] knowledge, unquestioned line of authority’, dating back to 1949, suggests that family mediators are not compellable witnesses, which means that a safe environment is created through the existence of ‘mediation privilege’. This enables the couple to make suggestions and ‘reality-test’ ideas, safe in the knowledge that, if subsequently discarded, those suggestions and ideas will not come back to ‘haunt’ them. In the family process the mediator is a neutral facilitator, able to provide information and think of options but not to give advice.

Both civil/commercial mediators and family mediators are likely to insist that the parties and their representatives have signed a written mediation agreement before the mediation starts, as this is the contract which engages the parties in the process. Most mediation agreements stipulate that a settlement is only legally binding when reduced to writing and signed by or on behalf of all the parties by someone with authority to do so.[[6]]

Hybrid mediation

Hybrid mediation combines the confidentiality and sensitivity of the family model with the more focused approach of civil/commercial mediation. The fundamental difference between hybrid mediation and classic family is that, as in civil/commercial mediation, the mediator can hold confidences, and the parties will therefore naturally spend much, if not all, of their time in separate private sessions (caucuses) rather than around the same table, with the mediator ‘shuttling’ between them, acting, both literally and metaphorically, as the ‘go between’. Whilst not necessarily excluded from the traditional family mediation process, lawyers are more likely to be involved at all stages of the hybrid mediation process, as in civil/commercial mediation, providing advice ‘in real time’, throughout the mediation, which is more likely to be conducted by way of a longer session, typically one whole day, rather than a series of shorter sessions, and drafting heads of agreement, or even a consent order, if and when a consensus is reached. As such, there are many similarities between hybrid and civil/commercial mediation.

Of course, in financial remedy matters the jurisdiction of the court cannot be excluded as any agreement must be ratified by the court on submission of a consent order. The application will make it clear that resolution has been achieved through the process of mediation.

Hybrid mediation may be particularly suitable for family matters in which the issues are complex, separate meetings and the ability to hold confidences would be beneficial, and/or there is a power imbalance (which is significant but not unmanageable) and/or high conflict.

Either the lawyers or one of the parties may make the first contact with the mediator. It is important that the mediator is even-handed at all times and has similar conversations with each of the parties before engaging in the process.

The first step is an intake session (or Mediation Information and Assessment Meeting, MIAM for short) with each party individually, primarily for safeguarding purposes. Domestic abuse does not necessarily preclude mediation or other forms of NCDR. The extent to which domestic abuse may be a bar to NCDR is a topic about which experienced and fair-minded practitioners may currently take different views. Mediators (and arbitrators) receive specific training in safeguarding (which remains an ongoing, not simply initial, check) and are well-placed to assess whether mediation is a safe and appropriate form of NCDR, in a given case, at a given point in time. The Family Court is not necessarily experienced by a vulnerable or abused party as a ‘place of safety’, even if ‘special measures’ can be in place. The delay of the court process can compound the abuse experienced by the more vulnerable person. Properly managed, mediation can very often offer a safe environment. Arrival times can be staggered (or sessions held online), and the couple kept separate in a more comfortable and secure environment. There are some cases where the background of abuse is at such a serious level that court intervention, backed by the imperative powers of the state and a security presence, is the most appropriate way to proceed. In many cases, however, this is not required.

If both of the parties are content to proceed (a decision to be taken by the parties themselves, not their lawyers, notwithstanding that they may support and encourage the process), the (first) joint session will be arranged.

If lawyers are to attend, there might be a professionals’ meeting ahead of the (first) joint session to build a rapport and to discuss the scope of the mediation and the issues which may arise.

The role of the lawyer in preparing for mediation

Lawyers need to be fully informed about all forms of NCDR. Clients need to understand the options available and which might be most suitable for them. A lawyer may want to re-visit this conversation with their client more than once.

Lawyers should engage with ‘the other side’ early on about NCDR. If ‘the other side’ is unrepresented, they should be written to, in clear terms, about the desirability of NCDR. The aim should be to create an environment which will promote constructive discussion, not cause positional polarisation.

Choosing a mediator isn’t as difficult as it might seem, but the adage ‘horses for courses’ is appropriate. It is advisable for lawyers to maintain a list of those with whom they work regularly and effectively, and to update it regularly. If it appears that one party is not keen to mediate, it can be disarming and encouraging to invite them to choose the mediator – ideally from a list provided. Lawyers must make sure that their clients know what to expect from the mediation process and understand everyone’s role within it. If the case is complex or difficult, an early conference with counsel may be beneficial, just as it would be in the court process. Advice and guidance before things turn positional and entrenched can be invaluable. It is also as well to consider, as soon as possible, whether counsel should attend the mediation.

A bundle of relevant documents for the mediator should be prepared well in advance. The content of the bundle should be agreed and confined to the documents which will assist the negotiation. It may be useful to set out in writing that which is important to each party, but any documents prepared should ideally be in the nature of case summaries, not skeleton arguments; they should be shorter, less legalistic and less positional, exploring the options for agreement, not seeking to batter the other side into submission.

The role of the lawyer during mediation – ‘mediation advocacy’

The role of the lawyer in mediation is not the same as the role of the lawyer in litigation. Mediation advocacy is not the same as courtroom advocacy. Indeed, some might argue that the role of the lawyer in mediation is not the role of an advocate, either primarily or at all.

Traditional advocacy has little place in mediation. In mediation, the lawyer is not there to make out a case: they are there to make a deal. The lawyer’s role is more advisory than adversarial. Lawyers need a clear understanding of their case and of the other side’s case in order to continually assess the likely outcome of a trial and the value to their client of settling before trial. This may change as the lawyer receives new information and interacts with the other side’s lawyer and witnesses.

However, the pleaded cases may only be the start of the journey. In addition to knowing the parties’ competing cases, legally and factually/evidentially, to help evaluate offers, lawyers must know their clients’ wider commercial, financial and social interests, and any other factors that could influence their approach to settlement. Clients, advisers and mediators all need to take a much wider view of their clients’ situation and not confine themselves to legal analysis.

Often in mediation the focus will not be on the legal issue under scrutiny in parallel litigation, but something else. A lawyer in mediation must understand the bracket of reasonable or fair outcome and balance that with what is important beyond the legal cause of action. The process is a blank canvas which allows the lawyer to free their creativity from the constraints of the litigation process.

The mediator has over-arching control of the process. The mediator will choreograph the process and it is important that lawyers involved are able to join in seamlessly, if the process is to succeed. Successful outcomes depend on the creation of a client-lawyer-mediator rapport.

[[1]]: Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002 at [14] followed in Venture Investment Placement Ltd v Hal [2005] EWHC 1227 (Ch) at [11]. See also in the family context, BC v BC [2025] EWFC 236.

[[2]]: Brown v Patel [2007] EWHC 625 (Ch).

[[3]]: Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] Ch 353, Cumbria Waste Management Ltd v Baines Wilson (A Firm) [2008] EWHC 786 (QB), Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Pentagon Food Group Ltd & Ors v B Cadman Ltd [2024] EWHC 2513 (Comm).

[[4]]: See e.g. Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2), AB & AB v CD Ltd [2013] EWHC 1376 (TCC).

[[5]]: Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231.

[[6]]: See Brown v Patel.