Conclusions and recommendations
1. In around a third of cases, solicitors
had not discussed the option of mediation with clients involved
in cases of family breakdown.
Under proposals out for consultation, the Commission intends that
all clients seeking legal aid for representation in court are
first assessed, by a professional mediator, on their suitability
for mediation. The Commission should require mediators to maintain
records of referrals and attendance, and of the decisions taken
at these assessment meetings, evidenced by the mediator and client.
2. Of the 148 people surveyed who commented
on the quality of the mediation they received, 67 (25%) were dissatisfied.
The Commission does not have sufficient information on the quality
and effectiveness of individual mediators' work to be confident
it is getting maximum value from legal aid funding, and that members
of the public are achieving the potential benefits. The Commission
should:
a) carry out regular user satisfaction surveys;
b) incorporate measures of mediator performance
into its quality assurance procedures including the proportion
of cases in which agreement is reached;
c) seek agreement from the UK College of Family
Mediators, Law Society and Bar Council to share information about
the quality of service provided by solicitors and mediators when
funded by legal aid;
d) revise its leaflets and online guidance to
ask clients to copy to the Commission all complaints made to the
complaints services of those professional bodies about legal aid
funded work; and
e) in mediators' contracts
include scope for financial penalties to be applied to the poorest
performers including provision, ultimately, for contracts to be
terminated.
3. Fee rates have acted as a financial disincentive
for solicitors to refer clients to mediation.
The new fixed fee scheme proposed by the Commission should give
solicitors more incentive to refer clients to mediation. The Commission
needs to evaluate the effectiveness of the new scheme after one
year of its operation, to check whether it has increased the take
up of mediation, encouraged earlier referrals to mediators, and
led to faster resolution of cases.
4. On average, a referral to court funded
by legal aid costs around £930 more than a mediated case.
In response to the National Audit Office survey of recipients
of legal aid, 33% said they had not been told about mediation
and, of those, 42% (or 14% of the total) said they would have
been willing to try it, representing potential savings of up to
£10 million a year. Mediation will remain voluntary, but
the Commission should set solicitors and other advisers a target
for the number of cases it expects to be resolved by mediation
rather than referred to court, and review the target annually
thereafter. Whilst mediation will remain voluntary, the Commission's
guidance and information should highlight its benefits and this
material should be made widely available, in public places such
as libraries and surgeries.
5. In some areas there is limited local access
to mediators. Pending the development
of additional capacity and in view of the potential savings from
mediation, it would be cost effective for the Commission to pay
reasonable travelling costs to clients living in areas with restricted
access to mediators.
6. The Commission's management data on mediation
referral and take up rates is poor, reducing the scope for comparison
between suppliers. The Commission is currently
developing a new supplier management database which will be implemented
in October 2007 for solicitors undertaking family work and in
April 2008 for mediators. The Commission plans to develop a client
database to accurately identify clients across all schemes, including
mediation. Meanwhile, it should use the supplier database to record
variations in rates of referral to and take up of mediation, identify
and investigate significant outliers, and, where necessary, take
remedial action.
7. Children are not routinely consulted during
the mediation process. Academic research
carried out in Australia found that 80% of parents whose children
were consulted as part of the mediation process felt that the
children benefited 'a great deal' from it. The Commission should
build on its previous child-consultation pilot scheme, with a
presumption that children should be consulted during mediation
as appropriate to their age and level of understanding.
8. The perceived costs of mediation may deter
parties who are not legally aided, even though the cost of a mediation,
if successful, is likely to give a substantial saving compared
with the cost of a contested court case.
Full or partial agreement was reached in 59% of mediated cases
examined by the National Audit Office. The Commission should investigate
the cost and benefits of helping to fund mediation for both parties
in cases where only one party is currently entitled to legal aid,
as a way of incentivising the non-legally aided party and potentially
making overall cost savings from reducing the number of cases
coming to court.
9. The Commission submitted a supplementary
memorandum to the Committee, proposing far-reaching changes to
legal aid for family breakdown, six days after publication of
the Comptroller and Auditor General's Report—and just four
days before giving oral evidence to the Committee.
Departments should alert the National Audit Office in good time
to any changes that may affect the analysis in the Comptroller
and Auditor General's Report, so that the National Audit Office
can advise the Committee on any implications for its Report.
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