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Parents shun mediation for the courts - Part 1

Date:12 MAR 2014

Between April and September 2013, approaching half of all parties involved in child-related private law court proceedings were unrepresented. This is the shocking result of our latest Freedom of Information request that shows more and more parents are shunning mediation in favour of a court-imposed settlement.

So what has happened to lower-income separating families since legal aid was withdrawn from lawyers in April 2013?

We already know impacted families aren't dutifully heading off to publicly funded mediation as the Ministry of Justice (MoJ) intended. So are they heading to court instead? Well, our latest Freedom of Information requests go some way to answering the question.

Here's what we found out:

  • Between April and September 2013, 21,574 parties represented themselves at court for child related proceedings (parental responsibility, contact, residence, etc). The figure for the previous 12 months (2012/2013) stood at 33,294.
  • So within 6 months of the changes to public funding, the total number of unrepresented parties already accounts for two thirds (65%) of the previous year's total.
  • Between April and September 2013, almost half (45%) of all parties involved with private family law child proceedings, were unrepresented. This is up from 37% for the last completed year (2012/2013).
  • Between April and September 2013, the number of applications rose by 10% to 29,243, compared to 26,252 applications for the same period in 2012.

This should come as no surprise. Critics of the MoJ's cuts to legal aid warned of burgeoning numbers of litigants in person causing delays in family courts already reeling from budget cuts of their own.

In response to the data outlined above, the MoJ will no doubt point to a forthcoming change in the law making it compulsory for all applicants to first meet a mediator before being allowed to issue court proceedings. But will this lead to the sought after reduction in the number of people turning to the courts?

Compulsion is without doubt a proven means of increasing the take-up of family mediation. But MoJ data reveals it to be an inefficient tool at best. In 2012/2013 - the last full year with legal aid in place - family lawyers made 62,390 compulsory referrals to publicly funded mediation. In the same year, the MoJ recorded just 13,571 mediation starts.

But perhaps the most telling statistic is one that can't be measured. Compulsory referrals to mediation ceased to be on 1 April 2013. So what are tens of thousands of lower income separating families doing to resolve their disputes? Well, not many are heading to mediation. The removal of compulsory referrals to mediation triggered a 43% drop in the number of mediations getting underway in November 2013 compared to the same month in 2012.

We also know that while the number of litigants in person is rising, the figures aren't yet large enough to account for the tens of thousands of people who consulted legal aid lawyers in 2012/2013.

So we're left to make some broad assumptions. First, a great many lower-income separating families are resolving matters between themselves now that lawyers are out of reach. Secondly, in the absence of legal input a great many continue to be mired in conflict. And thirdly, an unknown percentage of non-resident parents are giving up entirely.

This is for researchers and academics to answer in years to come. Alas, the Freedom of Information Act has its limits.

This article was originally published on the Lawyer-Supported Mediation website and has been reproduced here with permission of the copyright owner.

Marc Lopatin is a trained family mediator and founder of LawyerSupportedMediation.com. Marc is currently convening panels of likeminded family law departments for a forthcoming pilot covering six UK towns and cities including: Manchester, London, Newcastle and Leeds. For more information email: info@lawyersupportedmediation.com.

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