29/10/2012 11:07 GMT | Updated 28/12/2012 05:12 GMT

Family Mediation: A Waste of Time?

So family mediation is a waste of time. Or at least that's the conclusion of high profile family lawyer Marilyn Stowe writing in legal trade magazine Solicitors Journal.

While such a view will certainly draw fire from mediation governing bodies, Ms Stowe is spot on when it comes to fee paying separating couples. But after three decades of false dawns, change could finally be on the way. It's just very unlikely to involve private practice lawyers like Ms Stowe. Let me explain.

Firstly some context: separating couples are largely one-time shoppers. As such, they possess little (accurate) knowledge of the family justice system. They know next to nothing about what principles guide a court judgement let alone what separates so-called alternatives such as family mediation from collaborative law. And why should they? Most still throw themselves gleefully into long-term relationships and marriage without an exit strategy in mind.

Yet a key characteristic of one-time shoppers is that while building up some knowledge of the system they have no need to reapply this knowledge, nor a great incentive to share it.

It means a vital feedback loop goes missing when it comes to conditioning the behaviour of the professional adviser that separating couples turn to on mass: the high street family lawyer.

The behaviour of lawyers is remarked upon in positive tones throughout Ms Stowe's blog. Her firm even used the lure of fixed fees to induce more clients to choose alternative dispute resolution (ADR) options for an entire month. But here's the rub: while there are certainly no shortage of family lawyers wishing they had more ADR clients to compliment their traditional caseload, they see ADR as just that: complimentary. Has a family lawyer ever been sacked because their referrals to mediation fell below target?

Until this changes, Ms Stowe is entirely correct to proclaim that family mediation will remain "a waste of time". But this is not because separating couples are hell bent on turning to the courts. Rather, it's the result of a lack of innovation on the part of family lawyers to aggressively market more compelling pathways in the eyes of both partners.

The problem is that bold innovation demands a correspondingly strong incentive, which certainly - although not exclusively - resides in the profit motive. But when you're a partner of a highly successful private law firm (that profits from lawyer-led negotiations and litigation), the incentive is too weak to spur the bold innovation required.

But thanks to the government's decision to withdraw legal aid from most private family law matters, that incentive now exists. And it exists amongst those with the most to lose: publicly funded family lawyers. They're about to forego a huge slug of their turnover as the Ministry of Justice attempts to boost the number of mediations or self-litigants, depending on your view.

In response, publicly funded family lawyers will need to do more than train up as mediators to survive. The profit motive demands it. As their publicly funded client base shrinks by an order of magnitude, they'll need to hugely expand the number of private clients walking through the door. And to do this, they'll have to provide one-time shoppers with something different but more importantly they'll have to sell it to them first.

This is where family mediation comes in. In partnership with mediators all over their region, two centrally located publicly funded law firms could rebrand themselves as specialist hub providers of fixed fee legal advice for separating partners willing to explore mediation from the outset.

It's about commercialising a lower margin, higher volume advice-driven caseload that private law firms (their new competition) have no incentive to market for fear of cannibalising a private client base paying much higher hourly rates.

It is of course a huge ask of today's publicly-funded family lawyers. They're expert in navigating the vagaries of a subsidised marketplace but will soon be saddled with the new title of business development.

Going back to Ms Stowe, this won't prevent the court system inching towards meltdown. That was never the job of family mediation. But a growing incentive among family lawyers to aggressively brand themselves as outright ADR specialists might finally drag mediation from the margins and save a few lawyer livelihoods in the process. Who'd have thought!

(An abridged version of this blog was published by Solicitors Journal)