Changing Practices For Changing Times

21 June 2012

Diversify and Thrive: Mediation Practice Development

Changing Practices for Changing Times

University of London, 21 June 2012

Steve Kirwan, Nowell Meller Solicitors

• Introduction• Who are we?• Context• Strategy• Practical Delivery• Conclusion

Outline of my presentation

• Nowell Meller Solicitors – a regional law firm based in North Staffordshire/ Stoke on Trent. Unless you are from the Midlands, you’ve probably not heard of us.

• The Mediation Centre (TMC) – a national mediation service based in the Midlands. You’ve probably heard of us.

Who are we?

• What are the biggest threats facing (traditional) family lawyers?– Changes to public funding – reduction in scope of

private legal aid– New (better?) competitors e.g. Co-operative Legal

Services– New technologies - De-skilling and increasing

commoditisation e.g. Wikivorce.com– Our attitude – too expensive, too insular, too stuck in

our ways and too inflexible

Part 1 – Context (Why?)

• What are the biggest opportunities?– New markets – deregulation is likely to increase the

size of the legal services market– Greater demand for affordable fixed price and lower-

risk services – if we do not design and deliver these, then someone else will do so

– Tailored advice – still a need for personal services based on perceived value

– Much greater support for dispute resolution – real alternatives to court-based litigation

Part 1 – Context

• What will family legal services look like in the future?– A lot less traditional law firms (20%+ less?)– A lot less traditional family lawyers– A lot more Self-Represented Clients (LIP’s)– A new breed of Dispute Resolution Professional?

• (with acknowledgements to the Standards Committee Workshop on “The Future of Family Law Services” Leeds, 23 March 2012)

Part 1 – Context

• Family Law Act 1996 Part II• Access to Justice Act 1999• FPR 2010 Part 3 and the Pre-Action Protocol• April 2011 compulsory assessment for mediation• November 2011 Family Justice Review Final

Report – key practitioners?• Govt. estimate 70% increase in mediations to

come because of LASPO changes

Growing support for mediation

• Survey reported in May/June issue of The Review– 78% said that courts made no enquiry into DR– 76% said that clients had not attended a MIAM and

proceedings were issued without an FM1– One-third said they had referred at least 90% of

applicants to a MIAM– One-fifth said they had referred less than 10% of

applicants to a MIAM

MIAMs – our members said

• Comments on MIAMs:– The scheme is causing delay– Screening for mediation suitability is a lawyer’s job– It is an unnecessary hurdle– Practice is inconsistent – they are not supported or

valued by the courts– It is too late in the day for mediation– It is too expensive– Some applicants are manipulating the process

MIAMs – our members said

• Keynote speech of The President at National Conference – apologies that MIAMs not working as they should in certain parts of the country

• Jackson LJ calls for a “serious campaign” to teach lawyers and judges the benefits of mediation to settle disputes (LSG 15 March 2012)

• Beverley Sayers presentation to Resolution’s National Conference in March 2012 – “ADR – threat or opportunity?”

Pressure for change

• Mediators as key practitioners moving from information hub through working in partnership with lawyers, PIPs providers and others

• Not yet clear what the Review had in mind – active case-management or general hand-holding?

• Need for further dialogue and pilot schemes• An opportunity to change the culture – with couples

focusing on the interests they share rather than on those that divide them

Final Report of FJR – Paras 4.94+

From this:-

To this:-

• “The pessimist complains about the wind;• the optimist expects it to change;

• the realist adjusts the sails.”

• William Arthur Ward

Winds of change

Part 2 - Strategy

• Faced with an inevitable decline in traditional family practice, how can we respond?

• Limited options– Down-size (again)– Embrace change – find a new way of delivering

existing services to existing and new clients (e.g. fixed price, packaged, unbundled)

– Embrace change – find new services to deliver (e.g. full range of dispute resolution, counselling, etc.)

Part 2 – Strategy (What?)

• Training options – suitability to be a mediator• Foundation Training Course• Recognition to carry out MIAMs• Assessment as competent by the LSC• Annual CPD• Need for on-going supervision and professional

practice consultant (PPC)• Time-scale?

Could you become a mediator?

• New bid round• PQQ by 18 June 2012• Non-competitive• Three stages:

– PQQ– Application for MQM and pass desk-top audit– Reply to ITT in October 2012 (for December 2012) or

January 2013 (for March 2013)

• NB. Requirements to enable you to reply to ITT

Could you bid for an LSC contract?

Part 3 - Practical delivery

• Commitment to Quality - Effective systems and procedures based around the requirements of the MQM

• Staff in place – administration, mediator(s) and supervisor (PPC)

• Facilities – e.g. separate waiting rooms, second mediation room

• Finances – properly costed and realistic planning

Part 3 – Practical Delivery (How?)

• Properly resourced and trained administration team

• User-friendly referral procedures• Effective management and supervision• You need to communicate your vision – possible

referrers, local community, courts, the public• Build local networks

Part 3 – Practical Delivery (How?)

2012 – The End of the World?

• The end date of the Mesoamerican (Mayan) Long Count Calendar – 21 December 2012

2012 – The End of the World?

• The end date of the Mesoamerican (Mayan) Long Count Calendar – 21 December 2012

Where are we?

2012 – The End of the World?

• The end date of the Mesoamerican (Mayan) Long Count Calendar – 21 December 2012

Where are we?

The beginning of the apocalypse?

2012 – The End of the World?

• The end date of the Mesoamerican (Mayan) Long Count Calendar – 21 December 2012

Where are we?

The beginning of the apocalypse? OR

A positive transformation marking the beginning of a new era?

• “It is not the strongest of the species that survive, nor the most intelligent, but the ones

most responsive to change.”

• Charles Darwin

Final thought (the bit at the end)

Steve KirwanManaging Director

steve@nowellmeller.co.ukDDI: 01785 273141

@SPKirwanSol

Changing Practices For Changing Times

21 June 2012

Thank you and safe journey

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