The FMA position is fundamentally unaltered. The following Guidance confirms that FMA mediators should not come out of role and draft standalone Consent Orders on behalf of participants in mediation; this is not necessarily the same approach taken by some other membership organisations.
There is, however, no embargo against mediators drafting the terms of the proposed order within the confidentiality of mediation, within or as an appendix to the Confidential Summary of Proposals. Such drafting would not be within the skill set of all mediators, but there is nothing to stop those who may feel that, in appropriate cases, it is a service they want to offer clients. The clients can then, after taking legal advice, lift the privilege in order to produce the draft Order to the Court.
The drafting of clear, concise terms of mutually accepted financial proposals is a core mediation skill. It should usually be sufficient to express those terms within the Confidential Summary of Proposals in non-legalistic language, readily understandable to participants, but capable of easily being converted into a draft or final Consent Order by independent lawyers or by the Court. FMA mediators will always advise and encourage participants to obtain legal advice; we support any funding initiatives and pilots aimed at making this more possible.
Mediators need to protect themselves and the families participating in mediation; those cases where participants refuse to take independent legal advice are likely to be those where they and the mediators are at greatest risk from the mediators taking sole responsibility for the drafting, albeit within the confidential document.
In cases where there is a need for a more technical approach, mediators who are equipped with the legal and drafting expertise to provide a formal draft Consent Order within the confidential bounds of mediation are not embargoed from doing so by FMA policy – or indeed by the FMC. In certain cases, and for certain mediators this may be the best way of meeting the needs of particular clients.
In most cases of complex finances, however, a better approach is likely to be to integrate the independent legal, financial and drafting expertise into the mediation process using a lawyer-assisted model (the active involvement of the independent lawyers either to support the negotiation, or simply to perfect, perhaps in a short online final session, the terms of the proposed order) or by the use of a neutral financial professional. FMA’s emphasis on new ways to meet challenges in mediation (such as is explored on the two-day integrated-approach course) promotes this more flexible, inclusive, form of mediation.
The FMA believes that the current FMC Code of Practice permits mediators to set out the details of joint proposals developed during family mediation within the confidential summary of proposals document (still sometimes described as a memorandum of understanding), using the wording which would be appropriate to a draft consent order, provided care is taken. We appreciate that, pending further specialist training being made available, it is highly unlikely that anyone without a legal background will be contemplating undertaking this work.
The FMA also believes that family mediators who produce draft consent orders as standalone documents, not covered by confidentiality and intended to be sent directly to the court, are at serious risk of breaching the FMC Code and in our view FMA members should not produce such standalone documents.
The FMC does not yet have a finalised policy on whether or not family mediators are permitted to draft applications for consent orders and, if so, in what circumstances. In 2016/2017 the FMC consulted mediators on this issue; you can find a copy of the FMC’s overview of the responses here. The Law Society and Resolution have collaborated and produced their own guidance for mediators of all backgrounds, which you can find here. Further guidance is available for members of Resolution on their website with their suggestions as to appropriate paragraphs to be inserted in an Agreement to Mediate. Whilst there may be a divergence of view between Member Organisations about what lawyers, who may also be trained mediators, might undertake outside mediation, we do strongly recommend that those mediators who might be contemplating creating the draft consent order within mediation refer to the Law Society and Resolution guidance before doing so.
The drafting of clear, concise terms of mutually accepted financial proposals is a core mediation skill. We believe that it will usually be sufficient to express those terms within the Confidential Summary of Proposals in non-legalistic language, readily understandable to clients, but capable of being converted into a draft or final Consent Order by independent lawyers or by the court. FMA mediators will always advise and encourage clients to obtain legal advice; we support any funding initiatives and pilots aimed at making this more possible.
It is possible for a detailed draft Order that reflects the complexity of the clients’ joint proposals to be prepared by lawyers as part of an integrated approach. A final mediation session attended by the clients’ lawyers (or, in certain circumstances, a lawyer for only one of them) is often a very cost-effective way of drawing together the distinct skills, expertise and professional roles of mediators and lawyers to create an outcome which can potentially become a legally binding agreement.
FMA’s view is that FMA mediators should not produce freestanding draft consent orders at the end of the mediation process, whatever their professional background. Our concern is that, in our view, drafting freestanding consent orders creates a significant risk of breaches of the fundamental principles of mediation, in particular:
If we were persuaded that this was not the case, we would still be very concerned that having the mediator draft the consent order would deprive clients of the opportunity to obtain legal advice, which we believe is an important part of the process. A lack of affordable individual advice is not a gap which mediators can fill.
In addition, we are concerned that the broader benefits of mediation, such as improved communication and allowing the voice of children to be heard, may be lost if mediators are more narrowly focused on the limited outcomes that can be set out in a draft consent order.
Some of our concerns about the drafting of freestanding draft consent orders also apply to the inclusion of detailed descriptions of the joint proposals, using the language appropriate to a consent order. Nonetheless, in cases where there is a need for a more technical approach, mediators who are equipped with the legal and drafting expertise to provide a formal draft Consent Order within the confidential bounds of mediation are not embargoed from doing so by FMA policy – or indeed by the FMC. In certain cases, and for certain mediators, this may be the best way of meeting the needs of particular clients.
However, we strongly recommend that any FMA mediator who wishes to include detailed written proposals within the confidential summary of proposals, using the language appropriate to a Consent Order, does so only after consulting the FMC Code, in order to satisfy themselves that they are not at risk of breaching that Code in the individual case
We suggest that FMA mediators who do wish to include detailed written proposals within their confidential summary of proposals pay particular attention to the following provisions of the FMC Code:
There are also a number of practical reasons why FMA remains opposed to mediators drafting freestanding consent orders, set out below. They include protecting the public, insurance for family mediators, the rise of low-cost alternatives, and promoting co-operation between mediators and lawyers.
Giving information not advice
Whilst a mediator gives legal, as well as practical, information, they can never offer advice to either participant (‘this is what would be better/best for you/your family’). To do so, self-evidently, would infringe the fundamental principle of impartiality and risk taking the power to make decisions away from the client, both of which would also breach the Code of Practice.
There are many areas where it is important that clients have advice as to which route to follow. For example, should there be spousal maintenance and, if so, should that be for joint lives or for a fixed term and, if so, should that be extendable or not and should it end/ be suspended or continue on cohabitation of the payee? They may choose not to take the advice they receive, but in order to make decisions that are genuinely ‘informed’, they need to understand what they are ‘entitled’ to under the legal system and what the long-term implications of certain options might be.
The mediator can inform both clients as to the options and as to the factors which would be considered by a court but may not advise either client as to the legal implications of these important choices for him or her personally.
Consent Orders and Advice
If a consent order cannot be drafted without the drafter giving advice on its terms, the mediator who drafts a consent order is inevitably going to be drawn into giving advice. If it can be drafted without the drafter giving advice on its terms, then the mediator who drafts a consent order is enabling the participants to enter into a binding agreement without the benefit of legal advice as to the terms of that agreement.
Even where a mediator, acting very carefully, is able to draft a consent order without offering advice, it is naïve not to believe that the couple would place a great deal of reliance on the mediator in those circumstances, a reliance which should only be placed on independent legal advisers. The couple themselves cannot possibly know the ‘best’ legal way to achieve their goal.
Therefore, if mediators do include some draft consent order wording in a confidential summary of proposals, FMA’s view is that they should be careful to highlight where there is more than one option available and explain that independent legal advice is needed on which option is appropriate before a choice is made by the clients. For example, in relation to maintenance the mediator should be explicit that independent legal advice is required before a choice of which kind of spousal maintenance is made, as well as legal advice on which kinds of maintenance could result in additional payments being made many years in the future. This is similar to clients having advice from a PODE before deciding how much of a pension should be shared or is needed to offset pension sharing, and also which pension should be shared if there is a choice.
In part because of the importance of maintaining impartiality, it will take time for the mediator to give a detailed and entirely neutral explanation of what the legal jargon and wording used in a draft consent order means, as well as the different options available. This may be helpful, enabling clients to understand the steps needed to obtain a consent order and the need for legal advice, but there is also a risk that it may undermine the costs-savings arguments which often underpin the request that the mediator drafts the order rather than a lawyer doing so.
The relaxation of rules and guidance by SRA, Bar Council and The Law Society as to how one lawyer/ professional may act for both parties to a separation, and the rise of direct access and of bodies such as “OurFamilyWizard” and “amicable” do not, on their own, change the obligations on mediators. Fundamentally, in the view of FMA, preparing a draft consent order may not be a simple drafting job and there is a clear risk of a conflict of interest at least until a definitive court order has been obtained.
Confidentiality
The confidentiality of the mediation process is a fundamental principle of mediation and clearly protected by the Code of Practice. A draft consent order, unlike a mediation outcome document, is usually treated as an ‘agreement’ between the parties. It is, necessarily, shown to the court (this is the only way to turn it into a court order!) so there is a big question about when a consent order drawn up by a mediator stops being a confidential document and starts being an ‘open’ document, which the court might treat as showing that the couple have reached an agreement that might be treated as binding even before the draft order becomes a final consent order. As we understand it, those mediators who currently draft consent orders do so on the basis that what they draft forms part of the confidential ‘summary of proposals’ documents and then leave it to the couple to agree formally when they want to show it to the court. This overcomes some but not all the problems with confidentiality, not least, it still leaves the potential for both people to find themselves being bound by a document without ever having received legal advice about it.
Public Protection
The arrangements which couples make on separation are crucial to their futures and those of their children. We consider it vital that there is no confusion in the minds of mediation clients between the very different roles of a mediator and a legal adviser. There has to be a very clear demarcation to protect the public so that each individual understands fully that, whether or not he or she chooses to seek it, each client needs separate legal advice.
One of the findings of the “Mapping Paths to Family Justice” study was that mediation tended to work better when legal advice was taken during the mediation process.
If mediators can draft freestanding orders (even if those orders are included within confidential mediation documents) there is a serious risk that it will be less clear to participants that they in fact should take independent advice. When there are such advisers, it is they who will draft the order.
Insurance Implications for Mediators
The cost of professional indemnity insurance for mediation itself is currently very low. That is because mediators neither advise on the settlement terms nor draft orders, so have very limited potential liability. Mediators who are practising solicitors or barristers need to pay for very expensive insurance in relation to their legal work because they have substantial potential liability. They have to have this insurance whether they mediate or not and their mediation work falls within their general cover.
However, many mediators, whatever their professional background, practice solely as such. Standalone mediation services currently pay only for the lower, mediation level of insurance. If drafting consent orders became a standard mediation offering, mediators in general would have to offer drafting consent orders if they were not to go out of business, but they would then have to pay increased insurance premiums. Many mediation services, working within much more limited financial constraints than legal practices, might then be forced out of business anyway.
Low-Cost Alternatives
Since the discussion about consent orders first began, some years ago, there has been a significant change in the market. Typing “consent orders divorce drafting” into a web search now brings up adverts and website entries explaining how to get a consent order drafted from £38 to £300. Some of the services (inevitably the cheaper ones) are offered by non-lawyers (‘divorce services’); some are services offered by lawyers.
Although a consent order is a legal document, in January 2020, Mr Justice Mostyn decided that the divorce service ‘amicable’ operated a legitimate ‘non-lawyer’ consent order service, and there are now other services offering the same sort of service. These are low cost, sometimes very low cost, and require the clients to fill in lots of the forms themselves. We have our own concerns about the reliability of consent orders drafted by non-lawyers (as do many specialist lawyers) and would not recommend them (because of the importance of getting legal advice discussed above) but in any event are not sure that it would be practical to try to compete with these services on price.
The rise of these non-lawyer services has inspired some solicitors to take a different approach to consent orders, and to price accordingly. There will, of course, be some clients unwilling or truly unable to afford even £300 for a lawyer to draft a consent order, but that does raise the concern that they will be unwilling or truly unable to afford to pay family mediators a fair price for their work in drafting such orders.
Mediator Drafting Skills
It is a fundamental mediator skill to draft outcome summaries which are precise, comprehensive, capable of being easily interpreted into court orders, and incapable of being misunderstood. The ability to do this, whether or not the mediator has a background as a lawyer, is rightly a requirement of effective mediation practice. To be able to turn such a summary into a draft court order is a very different skill, which would require the mediator to learn a very different set of language and tools. To expect mediators to acquire a facility with the Standard Orders, or to put new emphasis on the specialist abilities of mediators who still also practise as lawyers, is to skew the expectations of what a mediator is, and to risk giving technical drafting skills a higher prestige than is appropriate, as against the facilitative skills which all mediators must have.
Mediation and the Legal Profession
The FMA considers that mediators and lawyers should both be looking for ways to work together to help families to resolve their differences in cost-effective and amicable ways, rather than either profession seeking to replace the other. We have different roles and offer clients different things; there is a risk that if mediators draft consent orders, our roles will blur and become confused.
The completion of a detailed draft order that reflects the complexity of the participants’ agreed proposals is an ideal opportunity for an integrated approach. A final mediation session attended by their lawyers (or, in certain circumstances, a lawyer for one of them) is often a very cost-effective way of drawing together the distinct skills, expertise and professional roles of mediators and lawyers to create an outcome which can potentially become a legally binding agreement.
Client Opportunity and Mediator Expertise
It is certainly the job of the mediator to imagine any pitfalls that may occur when mediated proposals are translated into a draft consent order; accreditation envisages that every mediator should be able to craft a confidential summary which leaves no gaps or vagueness that might be misinterpreted by the eventual drafter or maker of the Consent Order. Some mediators will decide that the language of the Standard Orders assists them in that task. This Guidance is not intended to inhibit mediators but rather to encourage creative and informed practice within the scope of mediation and its specific ethical framework.
Emma Ries, Neil Robinson and Philippa Johnson for the FMA, March 2025
