family law, mediation, LASPO, alternative dispute resolution, non-court dispute resolution, reforms
The Family Mediation Task Force, chaired by David Norgrove, has published its first set of recommendations on what more can be done to increase the uptake of family mediation.
According to the report, the immediate reason for the creation of the Task Force is that publicly funded mediations have in practice fallen by over a third as an unintended consequence of the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the loss of a major referral mechanism from legal aid lawyers to mediators.
One result has been an increase in the number of litigants in person in the family courts, many not representing themselves through choice. In addition too many people, including even some solicitors, do not understand that legal aid is still available for mediation.
The fall in publicly funded mediations has increased the financial pressure on many mediation providers and some have already gone out of business. This has led to concern that there may be a lack of capacity if and when the number of mediations begins to increase, which may result from the requirement introduced in April 2014 that most applicants to court should first have attended a MIAM to consider mediation.
Earlier in the year, the Ministry of Justice took action to gather ideas for how to improve the mediation picture from those working in the sector, academics, the wider family justice sector and the interested public. This has included a
web-chat hosted by Family Justice Minister Simon Hughes, which was inundated with ideas, an online crowd-sourcing tool to gather ideas called 'Dialogue' (which gathered almost 50 ideas) and a number of roundtable meetings hosted by the Minister with key parties. The suggestions raised in these forums have been considered by the Task Force and form the basis of many of their recommendations.
The summary of Recommendations made by the Family Mediation Task Force are reproduced below.
- We recommend that MoJ should undertake a sustained low level campaign to increase awareness.
- We welcome the consideration currently being given by MoJ to the creation of a single authoritative, lively and interactive web presence and help line.
- We urge the Government to consult with the Family Procedure Rule Committee to revise the unhelpful and archaic use of language in court forms and guidance (with particular reference to the divorce petition).
- We join all those who have urged the government now to abolish fault based divorce.
- MoJ should consider the paying for all MIAMs for a period of twelve months.
- We recommend that the fee paid to mediators for MIAMs should be increased for a fixed period of three years.
- We recommend that the LAA should fund the non-legally aided person for the first single session mediation for a period of three years.
- We recommend that the £200 settlement fee for obtaining a consent order once an agreement has been reached in mediation should be increased to £300 for financial and all issues cases only.
- We recommend that the LAA consider waiving the second eligibility test so that the initial eligibility test would continue to be valid for six weeks following initial checks by the mediator.
- We recommend that mediation should be an exempt service for the purposes of the Residence Test.
- We recommend that consideration should be given to a capital disregard for mediation cases analogous to the over 65s disregard.
- We recommend that MoJ should review the process to give clarity about the future role of assessment, SPIPs and MIAMs to build on what works and to promote inter-agency partnership working with the client as the central focus.
- We recommend that MoJ should review with the FMC by the end of this year whether and how far the McEldowney recommendations have been implemented and what further action is required.
- We recommend that the MoJ should clarify the elements of the LAA contracts with mediators that would enable it to achieve its strategic objectives.
- We believe it would be right for the Law Society and the SRA to consider whether the regulations should enable solicitors to see both parties together where they want that, for example when they have mediated.
- We recommend that options to include children should be urgently reviewed and a small, interdisciplinary group is established to improve training and supervision and registration in this area and update guidelines; and ensure that the FJYPC Charter is updated to include mediation and provide a coherent blueprint for hearing children’s voices in DR processes in future.
Jane Robey, NFM Chief Executive, responded:
'The Government has for some time been saying it wants professional family mediation to succeed, and now Ministers can show they are serious about changing the culture of divorce and separation by swiftly accepting this key recommendation.
The underspend in Legal Aid for mediation caused by the collapse in referrals of the past 12 months or so means the money is there to make this move. We trust the political will is there too.'
The full report is available to download here.An in-depth analysis of the report, written by Marc Lopatin, can be read here.
24 APR 2024
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