July 11, 2014

Why mediation taskforce proposals will cause further confusion

The proposals from the Ministry of Justice to boost the use of publicly funded mediation services are well intentioned, but will ultimately be as ineffective “as sticking a plaster on a broken leg” – because they fail to acknowledge the role that lawyers need to play in order for the process to work.

A taskforce led by Sir David Norgrove has concluded that mediation figures are down by a third, not because of a lack of funding, but because separating couples and even solicitors are unaware that legal aid is still available to fund mediation assessment and mediation sessions.

The withdrawal of legal aid for divorce and custody disputes has been successfully communicated both within the legal profession and amongst the wider public, but this has it seems, unintentionally resulted in the wrongly held belief that it also included the withdrawal of all funding for mediation services.

As such, the taskforce has concluded that the main barrier to couples accessing Mediation Information and Assessment Meetings (MIAMs) is one of poor communication.

Prior to the changes to the The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) mediation sessions, although voluntary, were commonly utilised because it was often a pre-requisite for those seeking to access legal aid. However, problems have been rife since the changes were unleashed and readers of our blog will be aware of our disapproval of legal aid cuts to family law.

Providing better channels to communicate the availability of the mediation services will undoubtedly be of some benefit, but the key point missing in the taskforce’s recommendations is the fact that couples do not tend to refer themselves to mediation in the first instance. They are referred by someone within the system, commonly family solicitors and lawyers, who understand the benefits of utilising the service and can communicate that information and advice to their clients.

Cutting the legal aid funding, predictably resulted in a reduced level of referrals, and the comment from Simon Hughes on the day that the Children and Families Act provisions came in to force, saying: ‘I want lawyers out of the process as much as possible’ is, in my opinion, not the correct way to begin building the referral numbers back up.

To increase the take up of MIAMs, the report is recommending that funding be provided so that all separating couples over a 12 month period (not just those who have a legal aid contract) can gain access to an initial mediation assessment. It also recommends that an interactive website and helpline be set up by the Ministry of Justice (MoJ).

But while I feel that any additional financial contribution from the government is to be welcomed, I think the taskforce’s proposals will only add to the current confusion around the best options for divorce. The withdrawal of legal aid is one reason why mediation figures are down, the other is that many couples going through a divorce do not understand how mediation works – and are also unclear about how to access it.

Going forward, we need to see better signposting of the services that are available, and an increased visibility of trained mediators who are ‘authorised’ to undertake these MIAMS meetings, combined with a cohesive structure that enables those working in family law to remain best placed to advise their clients as to the most appropriate course of action open to them.

The funding is already available for more mediators, but they require referrals in order to keep their services viable. Working with law practitioners will mean that separating couples can meet and be guided through the initial process of seeking a mediated solution, at less cost both in terms of emotion and expense. This won’t be possible if there is a history of Domestic Violence, but even where there has been disharmony, it is often possible to resolve at least some of the issues in mediation.

What other measures could be introduced to improve the take up of mediation? Should legal aid be made available permanently for MIAMs? Please share your views by leaving a comment below, drop us an e-mail or tweet us @helpwithdivorce