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Mediation Matters: Warm words about mediation are easy, but what matters is action

Date:20 FEB 2018
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Chief Executive, NFM

The Chief Executive of National Family Mediation returns with a regular column

I’m concerned the Government’s singular focus on Brexit continues to divert it from fulfilling a commitment to family mediation as an alternative to expensive and lengthy post-divorce court room battles.

In recent years we’ve had some positive changes. The Coalition Government took steps to encourage families to use the process to settle disputes. There were many good reasons to do so: putting aside the money, stress and time saved by individual families, there’s a gargantuan taxpayer cost from the way our country handles family breakdown.

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So in 2014 we saw the introduction of compulsory pre-court order application attendance at a Mediation Information and Assessment Meeting (MIAM). It was followed by a dedicated policy-making task force, overseen by the Ministry of Justice (MoJ), and involving front-line family mediation practitioners; another tick.

And there were other initiatives that set a pro-mediation mood music: the introduction of a free first mediation session, for example, and a major MoJ promotional campaign encouraging people to understand the many benefits of mediation over court room battles.

Fast forward to 2018, and all the good reasons to encourage mediation remain. In fact if anything they’re stronger. Family breakdown costs the UK economy £48bn per year. That’s a cost to each and every taxpayer up and down the land of £1,820 a year. The numbers of people making applications to court has now surpassed the numbers pre-LASPO, so family courts are creaking at the seams. And a new Aviva report finds the legal costs of divorce to individual families have doubled since 2014. Yet tragically the past couple of years have seen an uncomfortable inertia from Government, failing to improve the take-up of measures like family mediation that would help reduce these costs.

It’s no coincidence that in the past couple of years, figures from the Legal Aid Agency have continued to show falling numbers of people going to mediation. And the outcomes of NFM’s various FOI requests highlighted that most people were flouting the compulsory MIAM law.

So I am grateful to Ben Bradshaw MP, who represents the constituency in which NFM’s national office is based, for asking some probing questions of Ministers last month. There are linguistic protocols for written Parliamentary questions, but in essence Mr Bradshaw asked:

In her answers by Justice Minister Lucy Frazer MP made it clear the Government won’t commit to targets, and said the retention of legal aid for mediation will be assessed in the current Post-Implementation Review of LASPO.

She drew attention to the training on the court’s powers that the judiciary and court staff can undertake and declared the Government is working with the judiciary and HMCTS to promote mediation. I withhold judgement on its efficacy, given the Minister also said they’re working with mediation providers for the same purpose, and there’s been little evidence of this.

But there were some positives. Lucy Frazer referred to the digital platform changes being carried out to improve online signposting: NFM is grateful for the great work HMCTS are doing. And the Minister spoke warmly of mediation, stating it 'can be less stressful and quicker than going to court and can help to reduce conflict after a separation and avoid court battles'. She’s right, of course, and that’s been the case for decades, so we can add these to the benefits I outlined above.

But what was missing was word of what the Government is actually doing – or planning to do – to encourage more families to reap the benefits of family mediation.

Is ministerial inaction due to the paralysing effect of Brexit? Or the lack of continuity caused by the large turnover in ministers in charge of family law? Or just a fading commitment to changing the world for the better? It could be all these reasons, and maybe more.

But when ministers go on the record as they have done in recent weeks, it begs the question: what tangible action will you take?

Warm words are easy, but what matters is action. And it’s high time we saw some.

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