Gate-keeper, supervisor or mentor? The role of professional bodies in the regulation and professional development of solicitors and family mediators undertaking divorce matters in England and Wales

Abstract

This article sets out findings from a grounded theory analysis of the professional training and accreditation requirements for solicitors, accredited specialist family law solicitors and family mediators in England and Wales as set by their professional bodies: the Law Society of England and Wales and the then UK College of Family Mediators. ¹ It examines the roles that the professional bodies ascribe to themselves with respect to their profession and their members, considering the extent to which professional regulation fulfils gate-keeping, supervisory or mentoring roles. In conclusion it suggests that in the light of the cues transmitted by the professional bodies in England and Wales in respect of divorce cases and clients, the very nature of professional practice as a family law solicitor and as a family mediator is being transformed into a form of hybrid practice that draws upon two radically different epistemological traditions, with important consequences for solicitors, family mediators and their clients.2 Thus, it challenges the largely accepted dichotomy of adversarial divorce practice on the part of solicitors in opposition to the consensus-based approach practised by family mediators.

Keywords:

• solicitors
• family mediators
• gate-keeping
• supervision
• mentoring

Notes

 1. The UK College of Family Mediators has since changed its name to the College of Mediators and has broadened its disciplinary base from family law to encompass community mediation and other branches of mediation practice too. I shall use the new title throughout the article, although the research was conducted prior to the name and focus change. In addition, the Family Mediation Council has been established to standardise training and professional standards for family mediators and between family mediation bodies (including the Law Society and the College of Mediators). However, this has not made a substantial impact on the training requirements or the apparent messages that the bodies send to their members. On this basis, alongside the constraints associated with an article of this length, the Council's role will not be discussed in detail.

 2. This is discussed in much more detail in Webley (2010 forthcoming) .

 3. For a discussion see Menkel-Meadow (1991, p. 3).

 4. See too The Royal Commission on Legal Services Final Report Volume One Cmnd 7648 (1979) for a discussion of the key indicators of a profession.

 5. On this basis there is an argument about the extent to which the UKCFM is a professional body regulating a profession (family mediation). For a discussion of professionalisation and the development of professions, see Wilensky (1964, p. 137); see further Friedson (1994). For an applied discussion in relation to solicitors and family mediation see Brain (1994, p. 193); and in respect of the professionalisation of family mediation in the US see Barrett (1996, p. 617), Carey (1996, p. 635), Russell (1996, p. 613), Spiegelman (1996, p. 677) and Harper (1997, p. 687). For a discussion of the market in privately funded family mediation in England and Wales see Head et al. (2006, p. 8). For a discussion of publicly funded work see the National Audit Office and Legal Services Commission (2007).

 6. For family solicitors' skills, see Sherr et al. (1995). See Haynesand Roberts (1988, pp. 144–149) in relation to family mediators.

 7. See Davis et al. (2000) for a detailed consideration of family mediators in the context of legal aid work.

 8. See Eekelaar et al. (2000) for a detailed consideration of the role and approach of family law solicitors, as well as Ingelby (1988). See too Davis (1988) for a comparison of solicitors and mediators in the context of divorce, researched at a micro level.

 9. Documents in force and as extant at the 31 December 2006.

10. A full list of documents considered in the research may be found at Webley (2008).

11. The Law Society's Annual Statistical Report 2006 notes that during 2005–2006, 3791 new admissions to the Roll were law graduates, 1158 were non-law graduates who had taken the CPE/GDL prior to the LPC, and the remainder came via other routes such as overseas lawyers, barristers etc. (see Law Society of England and Wales 2007, p. 50).

12. The Legal Services Commission also acts as a ‘passporting’ body for the purposes of assessing family mediation competence in relation to publicly funded family mediation.

13. Subsequently, this has changed to two approved foundation courses: Hertfordshire Family Mediation and Key Mediation; and recognition has been granted to courses by ADR Group, National Family Mediation and Resolution.

14. See Webley (2008) for further details.

15. The figures have subsequently changed as at 15 October 2007 to 28 institutions providing courses in 35 LPC locations; 25 of these are university based: see www.lawsociety.org.uk/becomingasolicitor/qualifying/legalpracticecourse/courseproviders.law for details.

16. See The Law Society, LPC Provider Introduction [online], available from: www.lawsoc.org.uk/dcs/fourth_tier.asp?section_id = 4543.

17. The PSC provider figures have also changed slightly since the time of the research. As at 8 November 2007, there were seven institutions providing the PSC, in 59 locations: see www.lawsociety.org.uk/documents/downloads/becomingpscexternalproviders.pdf, version of 26 February 2007 Education and Training Unit, The Law Society 2007.

18. See Burton et al. (1999). The authors suggest that family law is a relatively new subject as far as the undergraduate curriculum is concerned, with the introduction of the first textbook in 1957 by Peter Bromley. Having said that they also point to the Faculty of Law King's College centenary of family law collection of essays in 1957, which may counter this view. See p. 27 for details.

19. The Law Society does have an accreditation scheme for family solicitors through the Family Law Panel. This is discussed in chapter 5 as the level of entry related to a solicitor with post-qualification experience rather than at trainee solicitor or recently qualified solicitor level, which is the subject of this chapter.

20. This is certainly the argument put forward by the QAA as regards general transferable skills in their benchmarking standards (see QAA 2000).

21. For a discussion of training and family lawyer behaviour, see Fritze-Shanks (1989, p. 202).

22. With a limited number of exceptions, for example, for fully qualified foreign lawyers.

23. For an explanation of how these codes were developed, see Webley (2008) for further details.

24. Non-family mediators are now organising themselves into a separate umbrella body, the Civil Mediation Council, which is seeking to establish itself as a professional body for mediators in the civil field in a similar way as the College of Mediators did approximately 10 years previously.

25. See Dingwall (1999, p. 131); and see further Dingwall and Fenn (1987, p. 51).

26. See Weber (1964); for a discussion see Abel (1989b, pp. 34–39).

27. See Dingwall (1999, p. 131); and see further Dingwall and Fenn (1987, p. 51).

28. See further Law Society (1994); for a discussion of the debates at that time, see Day Sclater (1995).