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family law mediation, taskforce, legal aid, litigants in person
Recommendations offered by the Family Mediation Taskforce to Government start off well enough. Its title is spot on: 'What more can be done, locally and nationally, to encourage more people to use family mediation to resolve their disputes?'
Meta Title :No role for lawyers to boost mediation
Meta Keywords :family law mediation, taskforce, legal aid, litigants in person
Alas, that’s about as far as it goes. The
report reminds the reader that taskforces tend to be commissioned by
politicians for politicians. They are not supposed to embarrass ministers or
recommend they scrap flawed assumptions.
In this instance, it’s clear that the
Taskforce wasn’t convened to question the enduring wisdom of trying to
establish family mediation as a front line service despite it living in the
shadow of referring lawyers for over three decades.
Judging by the Taskforce’s recommendations
it seems Messrs Grayling and Hughes still believe that some policy tweaks and
low-level spending will turn the aforementioned cultural norm on its head.
With no serious challenge to ministerial
thinking, the recommendations made by the Taskforce do little to address how to
establish a financially viable and scalable market for family mediation.
Promoting mediation as a front line service
- or a first port of call - is deeply flawed given the primacy of meeting
client need. The Taskforce’s decision to recommend additional subsidy where existing
subsidy has failed is evidence that ministers continue to believe promoting
mediation in its own right will lead to a vast increase of attendee numbers.
It’s not as if the MoJ has been twiddling
its thumbs on the communications and awareness front since April 2013. It has
produced materials for mediators, convened referral bodies and chatted up the
consumer press whenever opportunity presented itself.
Yet only one member of the Taskforce is
listed as a communications/marketing professional. This is relevant since key
recommendations - such as free MIAMs for all and paying for first joint session
of mediation when one party is private and the other funded - are marketing
devices intended to eek out more willingness for mediators to work with.
But as the Taskforce duly notes, people
want a service that constrains the behaviour of the other party and they want
to talk to someone who is on their side. They often want to exploit a power
imbalance or reverse it. It explains why family lawyers are – and family
mediators aren’t – to be found on the nation’s high streets paying rent and
Having said that, making MIAMS free for all
is not without merit. It makes a great deal of sense given the MoJ is now
expecting the nation’s mediators to change the mind of each and every Applicant
forcibly diverted to them en route to
court. Being able to offer them and the
Respondent a free MIAM - irrespective of their financial status - is clearly a
But this remains in the context of averting litigation, hardly the moment when mediation can have its greatest impact. This takes us back to how to individual mediation services can expand and convert more passing traffic?
Lets quickly remind ourselves of how this played out in 2013/14 (when the link with referring lawyers was severed). Publicly-funded mediation plummeted by almost 40% leading to the closure of mediation services overly dependent on subsidy.
Those referrals from lawyers were presumably made in spite of the absence of any financial incentive. As the Taskforce ruefully notes, publicly funded lawyers made fewer than 30 claims for Help with Mediation in 2013/14 amounting to a legal aid bill of £6,000! In response to this spectacular lack of commercial alignment, the Taskforce recommends paying an advising lawyer £300 – as opposed £200 – for drafting a consent order.
Lets break that down: you’re a publicly funded legal aid lawyer with individual and departmental monthly targets. You’re being told you can earn an extra £100 to support mediation assuming you’re the lawyer doing the paperwork, the parties are divorcing, the case is finance/all issues and it reaches agreement at mediation.
I think we can safely assume that publicly funded family lawyers will continue selling unbundled services to low income clients despite the fact that many lawyers privately express frustration that unbundled services fail to bring them into close enough proximity to have a meaningful impact. There is also the argument that unbundled services are doing nothing to dampen the incentive to litigate in person since clients can take advice between court hearings.
Above all – and in light of the lessons of 2013/14 – does the taskforce really think family lawyers will just on sit their hands should free MIAMS for all result in tens of thousands of separating couples making a beeline for family mediators? Every lawyer in the land would respond by promoting free initial meetings as a matter of course.
You can – as MoJ ministers seem intent on doing – exclude lawyers from your plans. But making a competitor of the go-to high street adviser is doing family mediation no favours.
If ministers are serious about scaling up the benefits of family mediation, they will recognise the fallacy of positioning it as a front line service. You can’t legislate for long-term cultural change but you can get more people in front of mediators.
Bringing separating couples to a point of readiness to mediate requires innovation and the careful choreography of advising lawyer and mediator. One suspects the Taskforce knew this all along.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.