Family Law

It's now been a year since the Ministry of Justice (MoJ) withdrew legal aid from lawyers for most private family law cases. So what are the repercussions for family law services?

Data from the MoJ and recent research from NAPO and Cafcass, point to a clear surge in the number of self-litigants.

Prior to the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act being implemented in April 2013, the MoJ reassured anyone listening that family mediation would take up the slack and keep families from the courts.

And what has happened? Well, as litigants in person surged publicly funded mediation starts plummeted by over 40% between May and November 2013, compared to the same period in 2012. Meanwhile, impacted lawyers turned their backs on mediation in favour of selling lower-cost unbundled parcels of advice.

It strikes me that no one is getting much out of this. For a start, a great many litigants surely feel reality bite when they twig judges aren't there to cock a sympathetic ear and rule dutifully in their favour.

Meanwhile, the nation's publicly funded family mediators resemble peasant farmers starring wistfully at the heavens praying the rains don't fail for a second time now that Applicants will shortly be required to check-in with them before being allowed to file court papers.

And what of impacted lawyers? Well, the jury is still out on whether those cut price/fixed fee packages will deliver sufficient returns to stave off the attentions of equity partners eyeing departmental targets.

Taken as a whole, it strikes me that a good many litigants, family mediators and high street fee earners all need each other. It's a lack of commercial alignment that's keeping everyone apart.

By and large, modest to average income private clients perceive family lawyers as too expensive or simply "not for them". Meanwhile, family mediation continues to underperform as evidenced by a recent tweet from National Family Mediation:

'We never take sides/give advice, but help people negotiate with each other constructively...' (NFM tweet, 25 March 2014)

Now, this might be what makes mediation effective but as marketing messages go, you might as well include the address of the nearest family court.

People want to feel safe, supported and advised when making crucial decisions about their future. But high street family lawyers aren't selling this in the main. Very few are promoting 'mediation support packages'.

But if we want to grow the market for family law services in the post-LASPO world, this will have to change. And that is the purpose of a national pilot I have been co-developing with a coterie of law firms including: Ronald Fletcher Baker, Major Family Law, Slater & Gordon and Jones Myers.

In the course of April, my social enterprise - Advantage Resolution - is launching four regional hubs of lawyer/mediators offering the approach on a cross-referral basis. The hubs are located in Central London, Newcastle, Manchester and Leeds. A total of 30 law firms are participating and two more hubs will be added before the 12-month pilot is closed.

Each hub is made of each firm offering fixed fee legal advice and drafting in support of mediation. The point is simple: to ascertain whether a group of likeminded family law departments can grow the local market among themselves for full service DR below £5,000 per party (fixed legal fee, share of mediation costs and any court fees).

The cost of fixed fee legal advice and drafting in support of mediation is drawn from a suite of fixed fee templates and matching billable hour estimates consisting of two meetings, an allocation of telephone and email support plus time to review and draft legal docs. Participating lawyers apply their own hourly rates and it's all done on an advice-only partial retainer, clearly spelt out in a specially configured client care letter. Mediation costs and any court fees are additional.

What are the prospects of success, then? Well, much will depend on whether those involved are more successful at persuading both members of a warring couple to participate: the holy grail in mediation circles. So while it is true we have a lot to prove, it's equally true that - for a great many lawyers - business as usual is already a thing of the past.

Marc Lopatin is a trained family mediator and founder of LawyerSupportedMediation.com. Marc is looking to establish the 12-month pilot in two more UK locations for launch in May. For more information email: info@lawyersupportedmediation.com or visit http://lawyersupportedmediation.com/.