2 Barriers to take-up
7. Despite the fact that the Commission's current
policy was for people in receipt of legal aid to attempt mediation
in the first instance, unless there was a good reason why they
should be exempted, only 20% of people funded by legal aid for
family breakdown cases had used it. (Figure 2). Two thirds
of clients who responded to the National Audit Office survey recalled
discussing mediation with their solicitor. Of the clients who
had not discussed mediation and so did not try to use it, 42%
said they would have tried mediation had it been explained to
them.
Figure 2: Resolving family disputes using legal aid funding
Source: National Audit Office
Note:
About half of those
who have initial legal help (285,000 people in 2005-06) receive
no further legal aid funding. The percentages shown relate only
to people who receive legal aid for mediation or further legal
advice and representation.
8. Difficulties in increasing the numbers attempting
to resolve their disputes through mediation were partly a consequence
of the way the legal aid system in family breakdown cases was
designed, and partly because some people felt they had not received
sufficient information about mediation as an option. The Commission
proposed to change its processes so that, in future, it would
require all clients to have a discussion with a mediator, either
face to face or by telephone, before they would become eligible
for legal aid to proceed to the next stage in legal proceedings.
However, the Commission accepted that there was a need for clients
to be given better, more accessible information in plain language.
The initial conversation with a mediator needed to be helpful,
and to happen at the right stage in legal proceedings and in a
location where people felt comfortable. It was also necessary
for there to be incentives in the legal aid system for clients
and solicitors to use mediation where it was appropriate, voluntary
and mutually agreed.[7]
9. The role of solicitors is more widely understood
among members of the public than that of mediators. The Commission
plans to make its leaflets on the benefits of mediation available
in places such as citizens' advice bureaux, Relate offices and
doctors' surgeries. It was also looking to pilot, later in the
year, a new telephone advice service for family breakdown similar
to the service provided for other sorts of legal advice.[8]
10. The Commission had not routinely gathered the
views of clients about mediation, although this would inform positively
the way that the Commission handles cases. The Commission pointed
to cultural issues that would also need to be overcome, which
had also surfaced in the National Audit Office survey of recipients
of legal aid. Mediators surveyed by the National Audit Office
similarly pointed to people being poorly informed about mediation
as one of the main reasons why they were reluctant to try it.
The issues to be overcome included a belief that family
breakdown could only be resolved by the legal system. One of the
reasons why people did not attempt mediation was because of an
engrained view that only a solicitor would defend an individual's
interests and that a mediator might not do that. There was also
a fear that a mediated solution could not be made as enforceable
as an agreement made in court.[9]
11. The Commission agreed that there was more it
could do to explain to people how mediation actually works, what
the potential benefits are, and its success rate. All mediators
were trained to reach agreements that made sure, for example,
that the more powerful partner did not impose a disadvantageous
settlement on the weaker one. The Commission also funded "legal
help with mediation", which enabled people who were in a
mediation process to consult their solicitor on any legal issues
arising from the sort of settlement that was being discussed.
The Commission accepted that there was scope to publicise more
widely the benefits and process of mediation, as well as encouraging
solicitors to promote mediation as an effective way forward.[10]
12. Unwillingness of one of the parties to participate
in mediation was cited by solicitors as the most common reason
for non-referral. In 2005 it accounted for 13% of all cases. The
National Audit Office recommended that the Commission should assess
the cost-effectiveness of funding both parties, where only one
party is currently entitled to legal aid. The Commission agreed
to explore that possibility because it might still cost less than
if the case were to proceed to court. Mediation is compulsory
in some other countries, but the Commission reiterated that mediation
would continue to be voluntary. Making mediation compulsory had
already been discussed in Parliament as part of the proceedings
on the Children and Adoption Act 2006 and rejected.[11]
13. Some 78% of the population live within five miles
of a professional mediator, but there were parts of northern England,
Wales, East Anglia and the south west where the distance to the
nearest mediator's office is at least 15 miles. The Commission
acknowledged that there were some parts of the country, in particular
in parts of Devon, North Wales and the Isles of Scilly, where
there were gaps in provision and where it was difficult to access
mediation services. Rather than paying excess travelling costs
to clients, the Commission believed it was better to increase
provision so as to ensure access to mediation near to where people
live, and the Commission was looking to improve coverage over
the next year.[12]
14. The National Audit Office found that 33% of the
recipients of legal aid they surveyed had not explored the option
of mediation as a way of resolving their dispute with their solicitor
or adviser. The Commission was now planning to change the system
so that clients would have to discuss their case with an independent
mediator before they would be eligible for legal aid to pay for
further legal proceedings.[13]
15. The Commission was planning to introduce new
contractual arrangements for solicitors which should incentivise
greater use of mediation. It was introducing a system of separate
fixed fees for initial advice, negotiation and full representation.
The new system should create a stronger incentive for solicitors
to encourage early settlement because, at each stage, solicitors
would receive the same payment for cases resolved quickly through
mediation as those which took longer. Savings could also be achieved
by the Legal Services Commission if a smaller proportion of cases
required full representation in court.[14]
7 Qq 2, 4, 13, 18 Back
8
Qq 8, 10, 34 Back
9
Qq 34, 35, 37, 101, C&AG's Report, paras 2.6, 2.8 Back
10
Qq 35, 101 Back
11
C&AG's Report, paras 2, 2.1; Qq 17, 38, 71, 80, 82 Back
12
C&AG's Report, para 2.11; Qq 11, 19, 22 Back
13
C&AG's Report, para 2.7; Qq 8, 12 Back
14
Qq 7, 9, 47, 106 Back
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