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Mediation Matters: Unlocking an understanding of mediation

Date:26 AUG 2014
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Chief Executive, NFM
Who says August is a quiet month? It’s not traditionally noted for major Government statements, but this month saw one of the most significant announcements affecting family law and mediation for some time. Justice Minister Simon Hughes pledged funding for a single free mediation session for both parties where just one of them qualifies for legal aid.

It was the ‘headline’ part of his full response to the recent report of the Family Mediation Task Force. You’ll recall he established that group in a bid to reverse the recent decline in the number of separating and divorcing people using mediation: a slump caused mainly by the legal aid changes of 2013. I use the word ‘headline’ cautiously. In truth, it didn’t make many of those. Some have criticised the move for its modesty, saying the Government should do more, or that Ministers are aiming money in the wrong direction.

Everyone in any professional field always wants more Government support – whether that’s through funding or legislation …or both.

But I’m impressed by the thinking in this announcement. Like others, NFM wanted the Government to provide more funding for more mediation initiatives. But the decision to make this particular move seems driven by two things: a finite pot of money, and the wish to use it shrewdly to make as much difference to the future of mediation as possible.

This is a promising way of allocating it, and it could signal a sea change. I differ from the critics in that my major reservations about the announcement lie well away from the choice of scheme. My worries are more about the proposal’s longevity and administration. But before the major ‘buts’, let me explain what I welcome.

Whilst legal aid is available for mediation, at present if one of the two people involved doesn’t qualify for legal aid they have to pay. This leads to a very high proportion of second parties refusing point-blank to take part, scuppering the prospect of a mediated settlement.

As a result there follows a lengthy and confrontational legal process as the separation goes through the heavily-clogged family court system. Both parties emerge battered, bruised and stressed, with an imposed settlement that rarely suits anyone, least of all the children. Ironically, given people’s initial reluctance to pay the relatively low costs of mediation, expensive legal fees mean both parties emerge from court far, far worse off than if they had tried to mediate an agreement.

People who are considering mediation often don’t fully understand exactly what they are paying for since mediation is an unknown quantity. Until you’ve been through it, you don’t know whether it will work, so you’re loath to pay for it. And when somebody knows that the other party – their legally aided ex – is getting mediation for free, it can make them more reluctant still.

So this new initiative, effectively providing a free ‘taster’, will help many couples take a vital first step to unlock an understanding of what family mediation can achieve.
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Professional mediators have long known that the biggest challenge can be getting people in the room, open-minded enough to give mediation a chance. Over 30 years’ experience tells NFM that participants’ confidence in the process blooms having had one session of mediation, enabling future arrangements to be fully discussed and considered. Things are pushed forward, with results and agreements that are ultimately life-changing.

Making the first session free in this way might appear a small step. But it’s in the right direction and it has the potential to begin to drive culture change about the way separation is handled.

Make no mistake, whilst this measure is a positive one, there remain obstacles that might wreck it.

The small print of the Minister’s announcement makes clear the change, due to be implemented in the Autumn, is for a maximum of 3 years. Crucially, however, it will be reviewed every 6 months. With a general election set for May 2015, it won’t just be the world-wearied cynics who sense a possible opt-out before it has been able to demonstrate impact. If culture change is the goal – and it has to be – then how effective can a period of 6 months, or even a year, be for a legitimate assessment of the scheme’s value?

NFM sincerely hopes that, in driving the changes that are so necessary, the Government – whatever the colour of the administration - takes a long-term view and allows this initiative sufficient time to be truly tested.

There are operational elements that need looking at too. Anecdotal evidence from parts of the country suggests that, a few months on from the introduction of compulsory MIAMs, there remains a worrying lack of awareness in some courts of that key legal change and there is very limited interrogation of the claimed exemptions. It’s vital that courts are made fully aware of this new measure too and, by properly vetting applications to ensure the exemption is properly claimed, courts could play a greater role in generating and supporting the desired culture change.

I mentioned above the importance of mediation participants entering the room with an open mind. It’s to be hoped that a similar degree of open-mindedness to the new scheme is shown by all professionals across England and Wales.

Some public domain noises from the solicitor sector in response to the Minister’s August announcement make it plain they don’t welcome the new measure. We believe it is common practice for many solicitors to fail to inform potential clients that legal aid is available for mediation, preferring instead to sell them a range of their own legal services. So what guarantee can the solicitor sector offer to the 110,000-plus couples that separate each year that they will be more open with them in properly explaining what is available to them from the new initiative?

Resistance and commercial self-interest must not allow solicitors to sink this scheme’s success.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.