3 The role of the Commission
16. The Commission's ability to oversee legal aid
for family breakdown cases had been hampered by weaknesses in
its management information. It was not, for example, monitoring
the differences in solicitors' rates of referral to mediation.
Nor was it able to explain why the proportion of mediated cases
failing to reach agreement varied so widely, from 22% to 52% among
the ten largest firms of mediators.[15]
17. The Commission used three separate databases
to record the cost of legal aid and help with mediation, but because
they could not be linked together it was unable to trace recipients
of legal aid through the whole process and assess the total legal
aid they had received. The Commission was planning to introduce
a new database system which would allow it to trace a client through
the whole legal aid process and compare, for example, the relative
costs of mediation and legal help.[16]
18. The Commission submitted a memorandum to the
Committee shortly before appearing before the Committee to give
oral evidence, detailing changes the Commission proposed to make
to legal aid for family breakdown, and how it would respond to
the recommendations in the National Audit Office Report [17]
With effect from October 2007, the Commission intends to change
the system of client referral to a mediator. In future, all clients
will be referred to a mediator before proceeding to the next stage
of legal aid funding, and mediators, rather than solicitors, will
assess whether the use of mediation is appropriate.[18]
19. The Commission intends to introduce tighter monitoring
of contracts with solicitors and mediators. It plans to monitor
the number of clients and couples seen, what proportion attempted
mediation, and how many failed to reach agreement through mediation
and reverted to the court. With this information, the Commission
will be able to apply sanctions to organisations which perform
poorly on referral to mediation, or on reaching mediated agreements.
The Commission would also be monitoring the number of referrals
solicitors were making to individual mediators, and the proportions
of successfully and unsuccessfully mediated cases. This sort of
monitoring would guard against any risk of collusion between solicitors
and mediators that might lead to abuse of the new system.[19]
20. There were no plans to make it compulsory, after
the initial assessment, to participate further in mediation and
the Commission expected that there would be some cases where mediation
would not be appropriate. As part of its family strategy consultation,
the Commission was seeking views on whether cases involving domestic
violence should continue to be automatically exempt from mediation
or whether its use should be considered by the mediator together
with the relevant individual or couple.[20]
21. The National Audit Office found that in almost
7,700 cases out of 57,000, "existing proceedings" had
been cited as a reason for not attempting mediation. Cases were
automatically exempt from mediation if a court date had been scheduled
within eight weeks. The Commission has now proposed, subject to
consultation, to reduce this period to four weeks.[21]
In all cases, however, an applicant for legal aid would be required
to participate in an assessment meeting with a mediator before
legal aid for representation in court would be granted. The Commission
was also attempting, in its new proposals, to introduce more flexibility
so that clients can use mediation at different stages in the legal
process rather than at only one point.[22]
22. Some 25% of respondents
to the National Audit Office's survey commented negatively about
their mediator. The Commission acknowledged the need to improve
mediators' skills, to monitor the amount of work that mediators
do and the outcomes they achieve, and to have a more diverse range
of mediators available. The Commission intends to produce performance
information on the quality of mediation services provided, including
feedback from clients, and there was the potential to make some
of that information available to clients when they were choosing
a mediator. In addition to their initial training, professional
mediators undertaking legal aid work were subject to an ongoing
requirement to meet a set of competencies. One important element
was that mediators had to undergo specific training on domestic
violence screening and assessment although, in the context of
overcoming resistance to greater take-up of mediation, the Commission
recognised that this was an important point it had not publicised
as much as it should.[23]
23. The Commission was undertaking a separate contract
review with solicitors and was looking only to contract with those
legal aid lawyers who became preferred suppliers. Those solicitors
would need to meet minimum quality standards judged on the basis
of feedback from clients, peer review and case assessment of their
work. [24]
24. Beyond some limited
pilot testing, the Commission had taken no specific action to
bring children's views into 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. [25]
The Commission acknowledged that children were the party most
affected by family breakdown, but in practice it had not until
comparatively recently actively promoted the benefits of mediation
from the child's perspective. The Commission's pilot had found
there were slightly better outcomes for all concerned in cases
where the child's views were sought in the course of mediation.
To take this issue forward, the Commission had now requested a
meeting with the Children's Commissioner.[26]
25. The National Audit Office found that for mediation
work undertaken between October 2004 and March 2006, the average
cost of each case was £611 for work done by not-for-profit
organisations, and £463 in the case of solicitors and for-profit
organisations. Under the current fee regime not-for-profit organisations
receive an annual grant as well as a fee per case, meaning that
it is possible for them to receive an annual payment regardless
of whether they have done any work. From October 2007, however,
the Commission intends to introduce the same contracts and fixed
fees for all organisations.[27]
15 Qq 3, 92 Back
16
Qq 93-94 Back
17
C&AG's Report, paras 1, 1.3, 3.6; Qq 8, 23, 33, 56; Ev 13 Back
18
Qq 3-6, 12; Legal Services Commission, Legal Aid Reform:
Family and Family Mediation Fee Schemes, March 2007 Back
19
Qq 15, 51, 105 Back
20
Qq 17, 104 Back
21
Q 79 Back
22
Qq 85, 111 Back
23
C&AG's Report, para 3.14; Qqs 20-21, 29, 35, 37, 98, 102
Back
24
Q 103 Back
25
Child-Inclusive Divorce Mediation: Report on a Qualitative
Research Study, Jennifer McIntosh. Mediation Quarterly 2000,
volume 18, Pt 2 Back
26
Qq 32, 67-70 Back
27
C&AG's Report, para 3.5; Qq 7, 15, 46, 54, 65, 95, 99 Back
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