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Parents shun mediation for the courts - Part 2

Date:18 MAR 2014

Marc Lopatin - Lawyer Supported MediationIn Part 1 of this article, I revealed Ministry of Justice (MoJ) data showing a material increase in the number of litigants in person presenting at family courts since changes to public funding in April 2013.

The MoJ data, secured using the Freedom of Information Act, showed that between April and September 2013 almost half (45%) of all parties involved with private family law child proceedings, were unrepresented.

In volume terms, the number of unrepresented parties attending court for the 6 month period already accounted for two thirds (65%) of the previous year's total. In 2012/2013, the number of unrepresented parties attending private family law child proceedings stood at 33,294. Within 6 months of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) coming into effect, the figure stood at 21,574.

In this - my second article about the MoJ data - I would like to explore the data in more detail and identify some themes ahead of the Children and Families Act being implemented on 22 April.

The data is particularly useful in explaining when applicants seek representation at court. Many lawyers will know anecdotally that applicants tend to make a beeline for representation when contesting ancillary relief cases.

In 2012/2013 - the last full year of MoJ data - 89% of applicants (36,419) were represented at court for ancillary relief proceedings.  The percentage stayed virtually the same (88%) for the first 6 months following the introduction of LASPO when 18,234 applicants were represented at court.

When it comes to private family law child proceedings at court, the level of representation is lower. In 2012/2013, 75% of applicants (32,266) were presented at court for s 8 proceedings. For the 6 months between April and September 2013, the figure dropped to 61% (16,599).

So what does this tell us? Well, given so many applicants post-LASPO are still being represented, the data tells us that legal aid family lawyers rushed through a huge amount of certificate work before last year's 1 April funding deadline.

Arguably, we won't know the true scale of unrepresented parties until more data becomes available and cases that secured public funding on the eve of LASPO are discharged.

This begs the next important question: will family mediation divert self-litigants from the courts given applicants will soon (22 April) be required to meet with a family mediator before filing a court application?

Of key interest here is what's going on within publicly funded family mediation. Between May and November 2013, publicly funded mediation starts fell 40% compared to same period in 2012. The key difference being that pre-LASPO (2012/2013), family lawyers made 62,390 compulsory referrals to publicly funded mediation before being allowed by the Legal Services Commission to access the next pot of public funding.

To give you an idea of how important that link with referring lawyers was, the combined number of UK-wide referrals to publicly-funded mediation in 2012/2013 from advisory agencies, GPs/NHS and relationship counsellors stood at 533.

This of course underlines the importance of the MoJ's forthcoming use of compulsion to expose applicants to family mediation before being allowed to file a court application.

As stated in my previous blog, compelling the applicant to meet a mediator does not enjoy a strong relationship with mediation getting underway, not least because the respondent can simply refuse attendance.

The same is true of more general efforts to promote family mediation directly to the public. Siren calls for cultural change and the mass advertising of mediation services are simply not sustainable on an ongoing basis. When it comes to dispute resolution, separating couples are ostensibly one-time shoppers making distressed purchases. As such, they are notoriously difficult to reach and ‘educate'.

It is therefore a continuing source of incredulity that the MoJ does not focus on fostering better relationships between high street family lawyers and family mediators.

Above all, if lawyers and mediators can be commercially aligned then the price of full service dispute resolution (DR) will fall so that thousands more separating families can afford lawyers as fixed fee advisors in support of mediation. It is with this vision in mind that my organisation will shortly launch a pilot to explore how lawyers and mediators can work more in tandem.

Until such working becomes an established feature of family law services, market forces will continue to pitch lawyers and mediators against each other at the so-called lower end of the market.

This is exactly what has happened following LASPO. Between April and November 2013, at least 6,064 people received legal aid when attending publicly funded mediation (the other party can often be private paying). In the same period, family lawyers across the UK submitted a grand total of just 26 claims to the Legal Aid Agency for providing ‘Help with Mediation' (publicly funded legal advice in parallel to mediation). Given the poor rates of remuneration and attendant risks to lawyers, this is hardly surprising.

Many lawyers have instead responded by offering modest income clients unbundled parcels of advice and fixed fee form filling. This might be ideal for more amicable separations but such packages in no way constitute a full service for modest income families in conflict.

Alas, these couples cannot afford to hire two lawyers to negotiate a settlement but neither do they dutifully troop off to mediation. And it's these couples that threaten to be the next wave of litigants in person.

Is this a market opportunity for lawyers and mediators to join forces? I hope so. It's certainly a cautionary reminder for the MoJ to start recognising the potential for lawyers to grow the market for mediation and ensure agreements reached at mediation are informed. 

Marc Lopatin is a trained family mediator and founder ofLawyerSupportedMediation.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. You can also contact Marc via Twitter.

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