April 25, 2014

Changes to the family courts – will they boost mediation rates?

By Fiona Kendall

On April 22, the family justice system had a major reboot to make it more streamlined and efficient. Many of the changes are concerned with how the courts that make up the system are re-organised and re-designated.

But there is one very important change that is it worthy of more widespread comment. It is now compulsory for anyone planning to divorce  to attend a mediation information and assessment meeting (called a MIAM) before they may apply to take disputes over children or finances, including property and pensions, to court.

For many working in the family justice system, the requirement to meet a mediator to discuss other options before being allowed to go to court cannot come soon enough. Since legal aid was largely withdrawn from family lawyers a year ago, the family courts have seen an explosion in the number of people representing themselves.

Data secured under the Freedom of Information Act reveals that in November and December 2013 over half (52%) of all parties attending court proceedings about child matters were unrepresented. This is unprecedented. Moreover, the same data reveals that between April and December 2013, family courts across the UK had to deal with a third more unrepresented parties, compared to same period in 2012.

This is causing delays for all court users, as someone who is not properly represented is entitled to receive additional help from the judge for which there is not adequate court time available. It means delays for resolving cases relating to child contact and residence, as well as financial matters.

But will the siren call from government to “mediate, not litigate” actually work?

Unless the public is better informed about its benefits, I have my doubts. Mediation is effective because it is a voluntary process which enables parties to stay in control of some of the most important decisions about their family’s life. Despite mediation being available in the UK for almost 40 years, that message is not reaching those who need to hear it most.  It is a message which many lawyers were – and are – prepared to spread.  Yet, the withdrawal of public funding for legal advice for family and divorce matters, means that many people are no longer consulting solicitors, and are unaware that there is still public funding available for mediation.

Mediation is not a soft option.  At a time of separation, emotions can run high and for some, the prospect of trying to tackle difficult issues with the person causing them pain is too much, even if a mediator is there to keep the conversation on an even keel.  Mediation is not a substitute for legal advice: it is complementary to it.  This is difficult for some couples to accept, particularly if they expect that mediation will mean that legal fees can be cut out altogether.

Suffice to say mediation can be a difficult sell. Despite the government retaining legal aid for mediation and promoting it hard, the number of mediations in the West Yorkshire area between April and December 2013 fell by over 40% year-on-year.

As a lawyer and a mediator, this concerns me. Crowded courts and underemployed mediators are symptomatic of the urgent need for family law services to be more affordable. And for me, that is all about lawyers and mediators working in tandem to keep people out of court at a price most people can afford.

Fiona Kendall, a partner at Jones Myers, is a founding member of the Lawyer-Supported Mediation network www.lawyersupportedmediation.com

If you have any queries about the new legislation and how it will affect you then please call us 0113 246 0055, leave us a comment below or drop us an e-mail.

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