Mediation post-LASPO: Philippa Hemery in Family Law Week

11 Jun 2019

In today’s Family Law Week, our mediator Philippa Hemery tracks the recent history of family mediation take-up and looks at what might be done to increase access to mediation.

Mediation has a long history. Resolving a dispute with the assistance of an independent third party can be traced back to the teaching of Confucius in the fifth century BC in China. In the United Kingdom, family mediation started as a grass roots initiative in the 1970s in response to the Finer Committee recommendations. The concept, advocated by Sir Morris Finer QC, of mediation being used to help separating families negotiate with each other and reach agreements, as far as possible, was soon recognised by the courts as a useful adjunct to the court process, and was codified in Part III of the Family Law Act 1996 and again in the Access to Justice Act 1999.

The Government has increased its focus on the use of mediation to resolve private family law disputes in recent years. First, the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) removed most private law family cases from the scope of legal aid from April 2013 – although legal aid remained available for mediation. Second, in April 2014 the Children and Families Act 2014 placed a statutory requirement on applicants in relevant family proceedings to first attend a MIAM before making an application to court, unless an exemption applies. This was followed by a dedicated policy-making task force, overseen by the Ministry of Justice, and involving front-line family mediation practitioners. The Ministry of Justice also undertook a wide-ranging publicity campaign, arranging for the publication of articles about mediation in the consumer, national and specialist media.

The anticipated rise in the take-up of mediation did not, however, occur. Instead, the number of publicly-funded MIAMs plummeted from 30,662 in 2012–13 to 13,354 in 2013–14, a drop of 56 per cent. The number of publicly-funded mediation starts also fell, although not as dramatically, from 13,609 in 2012–13 to 8438 in 2013–14, a drop of 38 per cent.

Fast forward to 2019, and while the numbers of publicly-funded MIAMs and mediation starts have increased from their initial post-LASPO plunge, they have not recovered to anywhere near pre-LASPO levels. The latest round of Ministry of Justice Court Statistics show that in October to December 2018, Mediation Information and Assessment Meetings (MIAMs) increased by 4 per cent in the last quarter of 2018 compared to the previous year. Whilst this is a welcome rise, MIAMs currently stand at just over a third of pre-LASPO levels. During October to December 2018, mediation starts also increased by 6 per cent and outcomes by 5 per cent, but this compares against a particularly low October to December quarter in 2017 and in context is an overall flattening of the trend. They are now sitting at around half of pre-LASPO levels.

At the same time, there has been a huge rise in applications to the family courts. In his first ‘View from The President’s Chambers’, the President of the Family Division, Sir Andrew McFarlane has highlighted the unprecedented and unsustainable volume of cases in the family justice system. He notes in particular the increase in the workload pressure in private law children cases where there are a high number of applications. The most recent MOJ Court Statistics show that in October to December 2018, applications for civil representation supported by evidence of domestic violence or child abuse increased by 18 per cent compared to the same period of the previous year.

How to explain the apparent anomaly between the push to increase access to mediation and the take-up?  In large part, the blame lies with the disastrous impact of LASPO. Once solicitors were taken out of the picture for legally aided clients, those clients had no source of information about mediation, and they were no longer channelled into mediation via solicitors by the requirements of the legal aid funding code. The Law Society president Christina Blacklaws explains,

“Cuts to legal aid failed to recognise that solicitors providing early advice were a significant source of referrals to mediation – avoiding costly court hearings. We believe that without early advice from a solicitor, many people do not know that the option of mediation exists, or how to access it…”

The dramatic reduction in referrals to mediation from solicitors also meant that some family mediation services – especially not-for-profit services – which had been heavily reliant on legal aid referrals went out of business.  In their submission to the government’s Post-Implementation Review of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), National Family Mediation (NFM) outlines,

“Amongst LASPO’s effects was an exponential rise in ‘litigants in person’, leading to severe delays and blockages in courts, combined with legally aided solicitor referrals to mediators drying up. Yet it was over a year before legislative efforts to increase family mediation take-up were implemented. This gap had a devastating impact upon voluntary sector mediation providers, resulting in the closure of a number of service providers due to declining numbers of referrals. Even now the knock-on effect is still felt with more provider organisations crumbling.”

As to the requirements implemented by the government in 2014, many argue that they are frequently ignored, and that the culture in the court system has yet to change. The NFM submission states,

“Our experience is that magistrates, judges, and court officials are bypassing the necessary process of getting the C100 and Form A paperwork signed by a mediator at a MIAM.

There is no evidence that courts have altered their practice and embraced the revised procedure rules or child arrangements programme that would prove pivotal in transforming the culture of litigation in divorce in this country.”

The NFM submission proposes a number of remedial actions. Amongst these are measures to increase the involvement of courts in encouraging separating families to use mediation, including:

” – Courts should always properly check the respondent has been approached, rather than allowing a situation where forms have simply been signed to smooth the applicant’s route to court.

– There needs to be a court focus on promoting and supporting mediation, and ensuring that all applicants and respondents to court have at the very least attended a MIAM before they have an appointment with court.”

These are positive proposals. A culture change is needed so that courts do not just expect people to have a ‘signed form’ but to have really considered mediation. Judges should take every opportunity to put this point across to parties.  Directions from the Ministry of Justice, reinforced by the senior judiciary, that attendance at MIAMS is mandatory would be useful in effecting change in this regard.

Action is required at the government level too. In February 2019 the government launched the Legal Support Action Plan responding to the review of the changes to legal aid made under LASPO. Promising an extra £8 million in funding, the Plan is said by the government to prioritise early intervention. In respect of mediation, under the Legal Support Action Plan, the government promises to build awareness of legal aid and mediation into their work to improve signposting of how people can access support. There will be a campaign launched to this end by autumn 2019. This is to be welcomed. Certainly the provision of information, and directing people to available resources can be very important to support someone to resolve a legal problem early.

What more could be done? The Law Society, the Family Mediation Council, National Family Mediation and others have suggested action that could be taken to increase the take-up of mediation, including funding MIAMs for both parties, reinstating legal aid for early advice in family cases, and introducing a system to register mediated agreements with the court. These are all measures that could boost access to out-of-court dispute resolution services and increase the take-up of post separation assistance outside of the family court arena.

One wonders, though, whether there is a more fundamental reason why separating families are not accessing family mediation. As Lisa Parkinson has explained in her book “Family Mediation”, a basic paradox in mediation is to expect more from couples who are splitting up than would normally be expected from those living together in relative harmony. Many individuals may decline mediation because they find the expectation of reasonable negotiation too daunting, or impossible to imagine. It is easy to see how an individual going through the emotional and psychological impact of separation may struggle to comprehend how mediation could possibly succeed as a mode of dispute resolution.

Yet with understanding and empathy, skilled mediators can help to settle even the most conflicted cases. Mediation provides opportunities to speak and be heard in ways that the courts do not offer. An intractable dispute on children issues may turn out to be rooted in other family issues that need to be understood. And when settlements are reached, research has shown that mediation is not only less costly, it produces better long term outcomes for the children of separating couples. If a settlement is negotiated via lawyers, parties may remain unable or unwilling to communicate directly. The process of mediation, by contrast, facilitates communication and increases insight and understanding. Arrangements for children are likely to depend on good communication, and the children of separated parents need parents who can talk and cooperate with each other.

Parties need to understand how mediators can help them to achieve a much better outcome than through litigation. They need to understand how mediation works and why it works. If it is right that people are reluctant to mediate because they cannot see how the mediation process can help to resolve their dispute, then at a time where the court system is bursting at its seams, it is essential that the government and those working in the family justice system tackle this issue.

The most recent Ministry of Justice Court statistics are good news. The numbers are moving in the right direction. But clearly more needs to be done to improve the take-up of family mediation. Increasing the numbers of separating couples able to access mediation can only be beneficial, both for the individual families and for the family justice system.

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