For family law services, it’s a mixture of bad news with some obvious pointers for putting things right. First, the bad news: In 2013/14, the number of mediation starts plummeted by 38% following the removal of legal aid from family lawyers for most family law matters.
Practitioners will recall that in pre-LASPO times lawyers first had to make a compulsory referral to mediation before being allowed to access the next pot of legal aid. As a direct result, there were 13,609 mediation starts in 2012/13. With that requirement removed, this fell to 8,400 in 2013/14.
Not surprisingly, the fall in numbers gave way to a massive £16.8 million under spend by the MoJ on family mediation in 2013/14. One would imagine this to be extremely embarrassing for MoJ top brass given this is one saving they weren’t looking to make!
In 2012/13, the annual bill for family mediation stood at £14.3m. In 2013/14, this dropped by almost half to £7.5m. On the eve of LASPO, the MoJ also put aside an additional £10m to fund the surge in mediation that never was. So given the MoJ was happy to spend 2012/13 budget plus another £10m to boot, total under spend for 2013/14 stands at almost £17m.
Another illustration of policy failure is the paltry amount paid out to family lawyers for supporting clients at mediation with legal advice. The MoJ paid out a grand total of £9,000 to lawyers claiming 'Help with Mediation'. That’s less than the price of going to court for a many private divorce client. And it should also be a cause for concern given decisions taken at mediation need be informed.
The answer is simple: pay legal family lawyers an acceptable sum to support mediation as a legal adviser. At present, the LAA offers lawyers £150 to perform this function. No wonder unbundled services replaced referrals to mediation in 2013/14.
And finally some good news: over three-quarters (79%) of mediation starts led to agreement. This is very impressive and over 10% higher than previous years when most clients ended up in front of mediators as a result of compulsion.
This is also reflected in the stats for MIAMs. Almost two-thirds (63%) of MIAMs led to a mediation start in 2013/14. Again, very impressive given the figure for 2012/13 stood at 44%.
Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation. The only question in town is what can be done to help both members of a couple – but particularly the second party – see some self-interest in exploring mediation.
With mediation services continuing to close their doors across the country, and more parents at court without a lawyer than with one, lets hope the MoJ comes up with some answers soon.