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
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.