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Mediation Matters: Divorcing and separating – information, signposting and legal aid

Date:30 SEP 2014
Third slide
Chief Executive, NFM
Last week’s new MOJ / LAA legal aid and mediation data heralded repeated ‘bring back legal aid’ choruses from some quarters. In fact, calls for a rethink came from a highly unlikely source, when the Justice Minister himself asked for a review of the impact on children, following the Children’s Commissioner’s Child’s Rights Impact Assessment .

The frenzy of legal aid concern from various places in recent weeks – reports and submissions of which the Children’s Commissioner’s was just one – might cause some to think some form of repeal or softening is in sight. But it’s just not realistic to expect ‘restoration magic wands’ to be waved now, or next year, or the year after that …or even the year after that.

The deficit means that for either of the political parties that can actually win the next election, not only is there no political hunger to reverse LASPO cuts – there’s not even an aspiration to do so. The logical extension must be the hastening of public money-saving measures, not the untying of purse-strings. Take for example, comments made at a fringe meeting at Labour’s conference where Shadow Justice spokesperson Andy Slaughter conceded his party has no plans to revert to pre-LASPO levels of eligibility. ‘We’re not going to get in a Tardis and go back to before,’ he said.

So it seems the patterns hinted at by last week’s legal aid data are set to continue. Those figures didn’t give cause for optimism for supporters of access to justice, or for family mediators. For example, an increase in mediation after the implementation of April’s Children and Families Act was noted, but it really was only a modest rise.

Yet interestingly, data from NFM’s affiliated services in various parts of England and Wales gives greater grounds for hope. It shows in a number of areas increases of 30 to 40 per cent in people attending mediation compared with the same period in 2013 were recorded.

We’ve clearly said that, despite these signals, it’s too early to properly assess the impact that compulsory MIAMs is having on take-up since it takes time for conversion to mediation starts and then on to agreements: a point reflected by the MOJ/LAA data report as well. But our statistics suggest the signs for professional mediation are – and, please, just whisper it – encouraging.

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The next legislative step to come is the public funding of the first mediation session, for those where even only one party is legally aided. We still await the Parliamentary process that kicks off this initiative. When the Minister announced it, he said it would begin in the autumn, so the starting pistol should be fired any time soon.

We’re hopeful this will help too, because getting people into the mediation room with open minds can be amongst the biggest challenges a mediator faces. Confidence in a previously-unknown process usually blossoms thereafter as people begin to understand, and then believe in, the potential of family mediation to help them shape their family’s future in an affordable way.

Back at the party conferences it was perhaps encouraging to learn that Labour would, if elected next May, seek to promote and improve mediation services.

But hang on. Isn’t that exactly what the current Conservative-led government has been pledging for years as part of its pro-family mediation plans? Simon Hughes again referred to Government ‘promotional work’ around mediation in a speech last week. Yet there’s been precious little improvement of the context within which professional mediators operate, and almost no central Government promotion of mediation and its benefits.

In his speech the Minister even proclaimed a regional BBC interview he’d taken part in, yet omitted to say that this feature’s genesis was not the MOJ, but an NFM approach backed up by the affiliated Essex Mediation Service.

Government says its strategy is to lead people to choose family mediation above family courts, but then seems not to back this up with the tactics that would help achieve its goal. And there’s a crying need for this promotion. Lessons need to be learned, and acted upon.

For some months now NFM’s 0300 4000 636 telephone helpline has been acting as more than simply a ‘book a mediator’ facility. With over 1,400 calls being received each month we know from experience that people facing separation or divorce don’t know which way to turn, so our phone, email and website advice provides a vital lifeline to these people.

Government, whatever colour it might take come May 2015, must urgently recognise that a world with severely-restricted legal aid (the one we’re stuck in, and stuck with) requires other forms of support: good quality information, signposting and advice that’s easy to obtain.

Yes, legal aid was costly, but unless other cheaper-to-provide forms of assistance are available to those struggling to navigate the post-LASPO minefield, the social costs that result from the unsupported breakdown of these families in a decade or two will be incalculable.