The Scottish Government

Legal Studies Research Findings No. 25

Meeting in the middle: a study of solicitors' and mediators' divorce practice

Fiona Myers and Fran Wasoff

Main Findings

• While there are claims that mediators are impartial and solicitors partisan, the study found the two groups closer in practice. Mediators have implicitly preferred options which stem from their core values of child-centredness that qualify claims to impartiality. Though formally partisan, solicitors adopt a stance of impartiality potentially aimed at negotiating an agreement.
• Both mediation and lawyer-assisted dispute resolution promote, in different ways, client empowerment: a participation model for mediation and professional representation model for lawyer-assisted dispute resolution.
• Although prior domestic abuse does not necessarily make a couple unsuitable for mediation, recent or severe violence was felt to introduce a power imbalance reducing a vulnerable partner's ability to negotiate freely. Mediation was generally thought to be unsuitable in such cases. Solicitors do not consider a history of domestic abuse as relevant to deciding suitability for their service.
• Agenda setting, establishing priorities and appraising options are more couple-led in mediation, and more professional-led in the client-solicitor relationship.
• Solicitors and mediators evaluate settlement options in terms of 'fairness'; being in a child's best interests; being 'practical' or 'realistic'; and being legally robust.
• Mediator-assisted and lawyer-assisted dispute resolution on divorce form a complementary framework, in which professionals aim to produce, by different routes, broadly similar outcomes: namely mutually agreed and enduring settlements within a framework set by the Family Law (Scotland) Act 1985 and the Children (Scotland) Act 1995, in which both parents can continue to carry out parental responsibilities and where the transition in the adult relationship is agreed.

Background

The trend in family law in Scotland and elsewhere is towards greater use of private ordering and informality in dispute resolution, using out-of-court processes, sometimes referred to as alternative dispute resolution (ADR). Accompanying this trend has been a growing policy interest in mediation and non-adversarial approaches to matrimonial dispute resolution. This is partly motivated by a belief that such private ordering leads to negotiated agreements that are less costly in economic and emotional terms than court-mediated outcomes, particularly where children are involved, and provide a better basis for continuing parental responsibility following divorce. All private ordering takes place 'in the shadow of the law', and in this case rests on the twin pillars of two major family law statutes: the Family Law (Scotland) Act 1985 and the Children (Scotland) Act 1995.

The range of professionals who can assist separating and divorcing couples to negotiate the practical consequences of the breakdown of their relationships has also expanded. Solicitors continue to be the main providers of family law services to divorcing and separating couples, much of it supported by civil legal aid. However, mediators working through Family Mediation Scotland (FMS) have expanded their services and their scope from child-related issues only to include all-issues mediation. Qualified solicitors with mediation training have formed another professional group offering mediation, as Comprehensive Accredited Lawyer Mediators (CALM). There is a major policy concern about the extent to which these services should receive public financial support and the extent to which divorcing couples should be encouraged to use a particular service.

This is a report of a qualitative study based on 48 in-depth interviews with 16 solicitors, 19 solicitor-mediators (CALM) and 13 all-issues FMS mediators about how they would deal with hypothetical but typical cases. The research compares how solicitors, solicitor-mediators and family mediators conduct disputes between separating and divorcing couples. The emphasis of the research is on the objectives and processes pursued by each group, rather than an analysis or comparison of outcomes.

Informal Processes

Each group has its own procedures to establish a couple's suitability for its service. Solicitors establish the client's ability to pay and eligibility for legal aid. FMS mediators only deal with cases involving children. Both FMS and CALM mediators require that the couple can co-operate and negotiate with each other; and that each individual is prepared to follow the rules of engagement formally set out in the Agreement to Mediate (FMS) or Conditions of Mediation (CALM).

Domestic abuse raises particular issues for decisions as to whether mediation is appropriate. Although a history of domestic abuse would not necessarily exclude a couple from mediation, recent or severe violence introduced an unacceptable power imbalance and reduced the vulnerable partner's ability to negotiate freely. Mediation was generally thought to be unsuitable in such cases. Solicitors do not consider a history of domestic abuse as relevant to deciding suitability for their service.

All mediators make use of intake procedures before starting joint mediation with a couple. FMS mediators see people individually to inform them about mediation, and assess the couple's appropriateness for mediation. CALM mediators do not require a meeting before the first joint session, but ask each party to complete a referral form.

At the FMS intake meeting, mediators explain the mediation process and discuss with the couple the formal Agreement to Mediate which sets out what is required, including norms of conduct in the sessions, and is signed by each party. The equivalent in CALM mediation is the Conditions of Mediation letter, which covers similar issues, apart from conduct norms.

Solicitors and mediators differed with respect to who is primarily responsible for setting the agenda and identifying priorities. In the solicitor-client relationship, priorities are determined primarily by the solicitor. Most solicitors reported similar priorities, e.g. that their first consideration was the children. Resolving immediate accommodation and financial needs received high priority; and if domestic abuse was reported, the need for interdicts was considered. The divorce action itself got relatively low priority. In contrast, both CALM and FMS mediators regard agenda and priority setting as the couples' responsibility. Nevertheless, most mediators anticipate looking initially at arrangements for the children, reflecting, especially for FMS mediators, the values base of the service.

Once agendas and priorities are set, both lawyers and mediators identify various options that might be pursued. In both CALM and FMS mediation each individual's objectives are articulated as a standard against which to measure options. One strategy used by mediators is to 'translate' parties' stated aims into less confrontational terms. In practice, options are generated by both the couple and the mediator, although mediators differed in the extent to which they took a pro-active role. Solicitors overtly appraise options by using their knowledge and experience to outline the pros and cons of each. In mediation the process of appraising options has both overt and indirect elements. There is openness of information sharing, an explicit identification of aims and issues, and joint discussion of possible options. Less overt is the way in which practitioners subtly guide people in particular directions. Although this can be a beneficial strategy, it is at odds with the rhetoric of mediation of neutrality and couple control.

Both solicitors and mediators evaluate options using similar criteria, namely whether they are 'fair'; in the child's best interests; 'practical' or 'realistic'; and within the law and likely to be upheld by a court. Each group attaches its own interpretation to the term 'fair'. For FMS mediators the 'Principles of Fairness' relates to norms of conduct as well as an outcome. CALM mediators and solicitors use 'fairness' in its legal sense of a 'fair and equitable' division of assets that reflects rights and entitlements. Mediators specifically avoid using the legal language of 'rights and entitlements'. For solicitors these concepts are central to negotiation.

All three professional groups use the phrase 'the child's (or children's) best interests' as the criterion for resolving child-related disputes. This is understood in terms of the Children (Scotland) Act 1995 that the child's interests are generally best served when both parents continue to be involved in a child's life, even if they live apart. This norm is so firmly held by solicitors that they give this advice even knowing it is contrary to their client's stated preference.

Each group had its own method for documenting outcomes. For solicitors, this is a legally binding Minute of Agreement. Couples using FMS mediation document proposals in a Memorandum of Understanding. CALM mediators produced a Summary of Mediation. Neither the Memorandum nor the Summary are legally binding, but summarise the couple's proposals and the reasons for them. Both need to be taken to the parties' respective solicitors to be made into a legally binding document; this was regarded by solicitor-mediators as a legitimate check. FMS mediators saw this both as a check but also as a potential means for solicitors to subvert the mediation process.

Most solicitors see a role for mediation in disputes over contact and residence of children but are less convinced of the value of mediation for resolving financial disputes. Concerns were expressed about the ability of non-legally qualified mediators to deal with the perceived complexities of the law in relation to financial matters, and whether people were made fully aware of their rights and entitlements during mediation.

Strategies for problem solving

Although all practitioners adopted a forward-looking problem solving approach, they used different strategies. Mediation involves joint and face to face negotiation between parties, facilitated by the mediator, with visual and verbal means of communication. Information and emotional concerns are shared. In contrast, clients working with solicitors negotiate indirectly. Solicitors acting on their behalf communicate with one another, usually in writing. In disputes over children, solicitors support the principle of non-intervention embodied in the Children (Scotland) Act, and encourage their client to resolve child-related issues informally, possibly by attending mediation. Solicitors both advise and mould clients' expectations in financial matters. In negotiations with the other party's lawyer, they aim for 'achievability', in terms of the couple's resources and what a court is likely to decide.

CALM and FMS mediators have similar strategies towards child-related matters, including emphasising the positive, reviewing past and current arrangements, and exploring the practicalities of possible future arrangements. Both groups explore interim arrangements for the children while discussions are in progress. FMS mediators draw on a discourse stressing social and moral responsibility, and a service value of child-centredness. CALM mediators, while also stressing the importance of achieving the best for children, draw more heavily on legal norms of rights and obligations.

For all three professional groups, reference to the law and to the power of the courts, specifically the 1995 and 1985 Acts, was made both to inform and for strategic uses. Positively used, references to specific laws set parameters for assessing options, particularly in relation to finance and property, and to support a proposed course of action. Negative references to law and the courts were used to rein in expectations and as a warning about the loss of control, uncertainty and conflict that might occur if the couple failed to resolve matters themselves. Solicitors portrayed the courts negatively as a potentially costly and conflict-laden forum, but also positively as forum to resolve a dispute if negotiations broke down.

Children (Scotland) Act 1995

All three groups emphasised the key features of the Children (Scotland) Act 1995 as being joint parental rights and responsibilities, obtaining children's views and the shift from custody and access to residence and contact. In addition, solicitors and solicitor-mediators, but not FMS mediators, cited the principle of non-intervention. Both CALM and FMS mediators thought the principles of the Act were in tune with the philosophy and process of mediation.

All three groups accepted, in principle, the need for children's views to be acknowledged but there were differences within and across groups about how best to achieve this. Most CALM and FMS mediators were reluctant to have direct contact with children themselves since they thought one aspect of empowering parents in mediation was that they should identify and respond to their own children's specific preferences and needs. Solicitors, were also generally reluctant to speak to clients' children directly, partly because of a conflict of interest. All three groups were aware that children over a certain age could obtain their own legal advice.

The Child Support Agency

The possibility of Child Support Agency (CSA) involvement was routinely included in the information-giving process of CALM and FMS mediators, for example by suggesting that couples make contact with the CSA helpline for a 'ball-park' estimate of child support to feed into discussion. But rather than recommending using the CSA, mediators encouraged couples to agree a suitable level of child support themselves. Solicitors and solicitor-mediators were uniformly critical of the CSA, mainly because of its perceived inefficiency, delays in making assessments, the complexity of the formulae; and the uncertainty this created both for solicitors seeking to negotiate a settlement and for couples in mediation.

Matrimonial property

The principles of the Family Law (Scotland) Act 1985 were used by both mediators and solicitors to help couples and clients identify matrimonial property. CALM and FMS mediators collected detailed information on matrimonial property and the relevant date for division of assets on forms completed by each party, and this was discussed in mediation sessions. Solicitors obtained this information directly by asking their client and the other partner's solicitor. All practitioners who dealt with the two relevant case studies drew couples' or clients' attention to the inclusion of occupational pensions as matrimonial property. But more detailed advice about the division of pension assets was seen to require specialist advisers. All three groups were wary of financial negotiations with a self-employed partner, raising concerns about disclosure of assets and child support payment. All aimed for couples to reach a compromise and avoid litigation, especially in relation to the more problematic aspects of matrimonial property, such as businesses or gifts subsequently used in the matrimonial home.

Other findings

Both CALM and FMS mediation require couples to give a full disclosure of their assets. Although they have no means of enforcing this requirement, some safeguards exist, such as information-sharing in mediation, verification of incomes, vouching for assets and liabilities, scrutiny of proposals by each party's solicitor; and termination of the mediation. Solicitors can, in addition, seek formal warranting of disclosure, and if not forthcoming, have recourse to the courts. But neither solicitors nor mediators felt they could be entirely confident that full disclosure had been made, especially if one party was unsure of the other party's resources.

Neither divorce nor the grounds for it were identified as significant issues for discussion in mediation. While solicitors regard divorce actions as routine, they actively discourage using fault based grounds for divorce and greatly prefer negotiated divorces based on separation grounds, as a less expensive and less acrimonious course of action.

Mediators and solicitors were found to have different perceptions of the financial implications of mediation. Mediators thought that mediation was a cheaper way for couples to resolve their disputes than using solicitors. Solicitors were less convinced of the relative financial advantages of mediation, for example for a non-legally aided client paying both mediation and legal fees.

Conclusions

The extent to which solicitors and mediators act, respectively, in a partisan or impartial manner, and whether they foster a sense of empowerment for clients has been widely discussed in the research literature. This study found that the three groups have more common ground and are closer in practice than expected from commonly made claims about partisanship and impartiality. Rather than a strictly neutral stance, mediators depart from that norm in subtly advancing implicitly preferred options more compatible with their core values. Similarly, rather than being strictly partisan, solicitors operate in a more impartial manner with clients, in order to secure a reasonable negotiated agreement.

Although all three groups try to establish the needs of the parties and their children, and work within a common legal framework, mediators tend to speak more in terms of the 'needs and responsibilities' of the parties, while solicitors tend to refer more to parties' 'rights and entitlements'. While all professionals stress parents' continuing responsibilities towards their children, there is a difference in emphasis. Mediators are more likely than solicitors to emphasise a couple's role as parents; whereas solicitors are more likely to focus on other consequences of the breakdown of a marriage. Rather than either mediation or lawyer-assisted dispute resolution providing greater client empowerment, it was found that each approach implies a different model of empowerment: a participation model for mediation and professional representation model for lawyer-assisted dispute resolution. Mediators emphasise the fairness of the process; solicitors stress the fairness of the outcome. Each approach may have particular strengths to offer to different couples with different disputes, and different histories of power imbalances.

There are both important differences distinguishing the activities of each group and significant similarities in values, priorities and objectives. Solicitors can deal with the entire process of divorce; mediators can deal with that part of the process involving negotiation, but solicitors are then required to complete the legal element. Mediator-assisted and lawyer-assisted dispute resolution on divorce together form a complementary framework, rather than defining mutually exclusive approaches. All of the divorce professionals studied aim to produce, by different routes, broadly similar outcomes: namely mutually agreed and enduring settlements consistent with the Family Law (Scotland) Act 1985 and the Children (Scotland) Act 1995, in which parental responsibilities can continue to be performed by both parents and where the basis for the transition in the adult relationship is agreed.

About the study

This research was carried out by Fiona Myers and Fran Wasoff of the Department of Social Policy at The University of Edinburgh from October 1997 to December 1998. It is an in-depth qualitative study commissioned by the Legal Studies Research Group of the Scottish Executive. It forms part of a wider research programme on alternative dispute resolution (ADR) in Scotland that also assesses how key family law statutes, particularly the Family Law (Scotland) Act 1985 and the Children (Scotland) Act 1995, are incorporated in solicitors and mediators divorce practice. The research is based on 48 in-depth interviews with 16 solicitors, 19 solicitor-mediators (CALM) and 13 all-issues FMS mediators, located in the central belt of Scotland, primarily Glasgow, Edinburgh, Stirling/Falkirk, Dundee and Perth. The research method used for this study was a modified 'simulated client' approach in which three fictional but typical case studies of couples seeking a divorce or separation were developed. Practitioners were asked to describe the process they would go through with the couple, having been given an outline of the 'case' prior to the research interview. The research compares the processes pursued by solicitors, solicitor-mediators and family mediators working with divorcing couples and evaluates the objectives, problem solving strategies, strengths and limitations of the approaches of each of these groups. The emphasis of the research is on the objectives and processes of each group, rather than on outcomes.