Fears for the future of mediation as MoJ asks lawyers to help raise its profile

Faced with a dramatic fall in the number of divorcing couples turning to family mediation, Lord McNally has asked members of Resolution to work with the Ministry of Justice (MoJ) to raise public awareness of mediation, including by use of a media campaign.

Resolution [which used to be known as SFLA – the Solicitors Family Law Association] is a national organisation of specialist family lawyers and other professionals who are committed to the positive resolution of family problems; their 6,500 members [which includes all of our family law team] follow a code of practice promoting a non-confrontational approach, encouraging solutions considering the needs of the whole family in the event of a family breakdown – particularly children.

McNally’s approach to the profession indicates that the failure of mediation to appeal to couples is even worse than feared. The number of couples going down the mediation route has fallen sharply since legal aid cuts were introduced in April 2013 – falling by 51% in the first six months, from April – October 2013 – which has sparked widespread publicity.

During this initial six month period, only 20 claims were made on legal aid for “help with mediation claims.” Mediation related legal work, which legal aid would once have just about covered in terms of cost, is now reduced to a one-off payment of between £150-£350, which means that the involvement of lawyers is being substantially reduced.

This is despite the fact that it is also now apparent how solicitors are so vital in the mediation system in terms of referring suitable clients for family mediators – with limited legal aid, fewer people are consulting solicitors when it comes to divorce and other family law issues and this is resulting inevitably in fewer referrals, further contributing to the fall in number of those couples turning to mediation.

There has been widespread suspicion that the MoJ has another agenda – that of ending the involvement of lawyers in disagreements hinging around divorce – which many feel these figures support.

The MoJ have also made a fresh announcement as to “mandatory” mediation for divorcing couples. This is not as radical it sounds – only an applicant can be obliged to go to the so-called MIAM (mediation and assessment hearing), plus the fact that courts should have been insisting on couples being referred to MIAMs before committing court proceedings for the last year or so, but many have simply failed to do so.

Many experienced family mediators feel that making it obligatory for couples to meet with a mediator as a condition before court action is entered into, will not see a big increase in the figures of those attending mediation sessions. In short, you can take a horse to water but you can’t make it drink. Successful mediation revolves around the positive focus of the divorcing couple and their commitment to reaching agreement in a respectful manner, and so forcing people to attend such sessions does not work well in practice. Mediation figures show the difficulties inherent in mediation as a method of resolving family law disputes – during 2012/13, over 75,000 referrals were made to mediation – of which 12% resulted in a satisfactory conclusion with a successful outcome being negotiated.

The importance of legal aid to the process is also evident from the 2012/13 figures, since of those 75,000 referrals, more than 62,000 came via lawyers who, under legal aid, were obliged to refer clients to mediation to ensure that the funding requirements were met.

So in short, the situation with mediation is a mess which the MoJ are now struggling to rectify, as McNally’s approach to Resolution members makes clear. Raising public awareness of mediation as an option for divorcing couples, particularly in view of the impact of the legal aid cuts last year, now presents something of a mountain for the MoJ to climb – with divorce lawyers and their clients unsure of the direction in the meantime.

Contact our specialist Family Mediators today

Here at Bonallack and Bishop, we are absolutely committed to the promotion of family mediation as a sensible way to resolve family law disputes, for many people. Our team includes two fully accredited and trained family lawyers/mediators.

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