Examination of Witnesses (Questions 40-59)
LEGAL SERVICES
COMMISSION
MONDAY 12 MARCH
2007
Q40 Mr Touhig: I appreciate that,
but you would be in a position to advise Ministers and Parliament
if you thought there should be a change in the law.
Carolyn Regan: At this stage,
I would say let us try the new route of the new contract, with
fixed fees for solicitors and referral to a mediator where a representation
order is applied for. Let us see first whether that boosts the
number of couples going to successful mediation.
Q41 Mr Touhig: We have been going
for half an hour at this sitting and it is clear that you do not
favour compulsion at this stage. I am somewhat confused, because
you said to the Chairman that people will have to go via mediation,
yet in answer to my colleague, Mr Khan, you said that it was voluntary.
Which is it?
Carolyn Regan: Just to clarify,
there must be a referral to a mediator before a representation
order is applied for. Currently, that is an application to the
Legal Services Commission. [3]
Q42 Mr Touhig: Right. But if there
is no danger of any physical violence from one party to another,
mediation would be a good course and you propose to keep that
under review?
Carolyn Regan: Yes, correct.
Q43 Mr Touhig: And have you got a
timetable to say that you have reviewed it for a year or two years?
Carolyn Regan: I would suggest
that we review the application of the new system in a year's time
and come back to you with a report about the number of people
who have gone to mediation and the outcome in terms of success
rates.
Q44 Mr Touhig: And will you consider
compulsory mediation in that review?
Carolyn Regan: We will certainly
consider it. In terms of the Report in a year's time, I was thinking
that we would consider the new system, which comes in at the beginning
of October, and how it is operated.
Q45 Mr Touhig: Okay. Mediation is
perceived as an additional cost. To most people, perception is
more real than fact. It is not fact, mediation is not more expensive.
What are you doing to dispel the perception that it is more expensive?
Carolyn Regan: That is for discussion
with mediators and solicitors because the legal aided clients
are less interested in that.
Q46 Mr Touhig: Yes, but you—or
we, the taxpayer—are footing the bill.
Carolyn Regan: Absolutely. It
is partly funding family law on fixed fees rather than on hourly
rates; partly making sure that we only work with preferred suppliers
and solicitors who meet our quality marks and compliance with
requirements; and partly making sure that those solicitors continue
to provide high-quality Legal Aid and have viable businesses.
Q47 Mr Touhig: Yes, I can understand
that, but I am still not clear what you are doing to dispel the
perception that mediation is more expensive than the alternative.
Carolyn Regan: Our initial discussions
between sending out the revised family fees and the new contract
with the Law Society and with Resolution, which represents the
family lawyers, is that they accept that we are putting in the
right incentives which would help them to look at their behaviours.
Q48 Mr Touhig: Do you accept that
there is the perception that it is more expensive to go via mediation?
Carolyn Regan: There is that perception.
Q49 Mr Touhig: Right, so will you
be monitoring to see whether that perception has been reduced
or not in a year's time?
Carolyn Regan: Yes; I am sorry
I wasn't answering that clearly. We will look at that as part
of our one year review.
Q50 Mr Touhig: Right. The Report
shows that in many cases the parties are not aware that they can
go to mediation. Do you blame solicitors for that?
Carolyn Regan: I do not blame
anyone, but I would like to find a way of increasing the number
of people who go to successful mediation.
Q51 Mr Touhig: You said in answer
to the Chairman that you would be monitoring that. How do you
propose to do it? Will you set up a monitoring unit to monitor
the advice that solicitors are giving?
Carolyn Regan: We are not going
to set up a separate monitoring unit, but part of what we will
be doing when solicitors and not for profit organisations are
on the same contract is much closer contract monitoring of the
number of clients and couples that they see, and what percentage
go to mediation and then taking some action against the ones that
have very low referral rates.
Q52 Mr Touhig: Mr Khan sought to
dispel the myth that solicitors rip people off in these matters,
but if you do not monitor this effectively, we are not really
going to know, are we?
Carolyn Regan: Part of what we
will do with the new contract is to monitor it effectively and
to make sure that we have a conversation with those firms that
are clear outliers.
Q53 Mr Touhig: We have touched on
your monitoring several times. Do you have a plan that you could
submit to us, which says, "This is what we will be covering
on all the things we want to monitor from the time we introduce
the new scheme"?
Carolyn Regan: Yes, I could let
you have that.[4]
Q54 Mr Touhig: Have you had discussions
with the Law Society about solicitors' perceived failure to advise
clients?
Carolyn Regan: We have had many
discussions with the Law Society.
Q55 Mr Touhig: Do you find them any
good? Do they actually crack the whip or are they just a waste
of time?
Carolyn Regan: Some are more helpful
than others—
Mr Touhig: I mean the Law Society.
Carolyn Regan: In terms of the
discussions? I think that the revisions we issued the other week
have generally been welcomed by the Law Society and others. Just
as a PS to that, we have very productive discussions with Resolution,
which represents the family lawyers, and is a more specialist
group.
Q56 Mr Touhig: The number of people
seeking to resolve a dispute by mediation is only one in four
compared with those who take the other route. We know it is cheaper
to go via mediation; it saves time. Is not that a great incentive
to push very hard for more and more people to seek to resolve
these matters through mediation?
Carolyn Regan: It is a great incentive
and it is also something we need to promote with the clients because
the outcomes in terms of avoiding court cases are very good for
them.
Q57 Mr Touhig: You submitted the
action plan to us. Why did you not show it to the NAO and discuss
it with them?
Carolyn Regan: We have been in
discussion with the NAO about the action plan.
Q58 Mr Touhig: That is not the advice
that we have got. You do know about it, do you? That is not what
we were told.
Janice Lawler: I do not have every
detail of it.
Q59 Mr Touhig: So you are aware of
it.
Sir John Bourn: Certainly, yes.
3 Note by witness: My response to this question
is further clarified in Richard Collins' response to Question
85. However, we wish to make clear that there is a difference
between compulsory consideration of mediation through assessment
meeting and/or willingness test and compulsory mediation per
se. Back
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