Examination of Witnesses (Questions 80-99)
LEGAL SERVICES
COMMISSION
MONDAY 12 MARCH
2007
Q80 Mr Mitchell: Should one party
be able to exercise a veto?
Carolyn Regan: One of the suggestions
in this Report is that we should consider paying for mediation
for the other partner who does not get Legal Aid. That is something
that we will look at, but obviously I am not authorised to agree
to that.
Q81 Mr Mitchell: So you think that
the other party should be given some incentive to participate.
Carolyn Regan: That is a recommendation
in the Report, which given that—
Q82 Mr Mitchell: Would that be costly?
Carolyn Regan: It would cost
Mr Mitchell: But would it be costly?
Carolyn Regan: It might cost less
than the alternative, which is going to court. We need to look
at that.
Q83 Mr Mitchell: That should seriously
be considered. Since your evidence came in, we have received representations
from the Family Mediators Association[6]
and National Family Mediation[7],
which say that the proposals are a retrograde step. A particular
concern is that the loss of the exemption from the statutory charge
for legal help with mediation removes a major incentive to parties
to elect for mediation. Why have you done that?
Carolyn Regan: I do not know.
I have not seen the comments.
Q84 Mr Mitchell: Those organisations
say that it is: "a worrying indicator of a lack of will on
the part of the LSC to support realistically the option of mediation"
for those involved in family breakdown. You have been very naughty.
Carolyn Regan: I am afraid that
I do not know the answer to that question, but I can come back
to you on it.
Q85 Mr Mitchell: Okay. Another considerable
concern is the proposal to change the point at which solicitors
are required to refer publicly funded couples to mediation, from
the initial request for legal help—clearly, that would be
valuable—to just before court proceedings are issued; in
other words, when battle lines have been drawn. That is a mistake,
surely, not on their part but on yours.
Carolyn Regan: No. We are saying
that before a representation order is applied for—before
people get to that stage—there has to be a conversation,
called a willingness test, with a mediator, and then an assessment
meeting. So mediation actually comes earlier in the process.
Q86 Mr Mitchell: Let me pursue the
point. The organisations say that the proposals have the potential
to be disastrous for mediators, the respective parties and the
public purse.
Carolyn Regan: I am not sure why
they are arguing that.
Q87 Mr Mitchell: The gentleman behind
who usually nods before you do is not nodding.
Carolyn Regan: He is not nodding.
Q88 Mr Mitchell: So you do not accept
the representations?
Carolyn Regan: No, I do not.
Q89 Mr Mitchell: It would be well
worth looking at them.
You mentioned the requirement now to go to mediation.
The requirement under the proposals seems very soft if all people
have to do is ring a mediator, who is probably hurrying to get
home. He cannot deal with such matters on the phone. Surely both
parties have to sit down with a mediator.
Carolyn Regan: The first point
is to have a conversation about whether mediation is appropriate.
Q90 Mr Mitchell: But a conversation
on the phone is no use at all.
Carolyn Regan: But straight after
it would come an assessment meeting with both parties, so on the
assumption that people—
Q91 Mr Mitchell: The gentleman behind
has nodded, so that must be right. Okay, so the situation will
be more serious than ringing NHS Direct.
Carolyn Regan: I could not compare
the two.
Q92 Mr Mitchell: Why are there such
variations in performance between mediators, or mediation attempts?
They vary from 22% failure to 52% failure. Why are there such
wide variations?
Carolyn Regan: We do not really
know at present. We need much better data to monitor performance.
I think that that goes back to your previous point about having
a conversation with the mediation representative bodies, in the
light of what you just read out, to find out what their concerns
are.
Q93 Mr Mitchell: On a priori terms,
as we lawyers say, intrinsically, it must be better to go to mediation
first. You do not have data of the quality to allow you to evaluate
the effectiveness of mediation as opposed to lawyers. I note that
you have three separate databases to record the cost of Legal
Aid and help with mediation. They cannot be linked together, so
you cannot trace recipients of Legal Aid and measure the total
Legal Aid that they receive from the whole system, and therefore
you cannot trace the benefits of one system as opposed to another
one. Why are you in such a mess?
Carolyn Regan: Our databases are
not ideal, and I would not pretend that they are. We are operating
with three at the moment. They were developed incrementally as
new information was required. We are bringing in a completely
new database for suppliers that will be able to trace a client
through all different parts of Legal Aid.
Q94 Mr Mitchell: So you will be able
to say whether one process of mediation or one mediator is more
successful than an alternative one.
Carolyn Regan: We will be able
to do that sooner when we look at the outcomes
Q95 Mr Mitchell: I have one final
question about not-for-profit organisations. I see that they get
a kind of retainer fee, irrespective of the number of mediation
cases that they do. Why is that? Who are these people? Is it a
retainer fee for other services, to which is added an extra fee
for mediation? Why is it on that basis?
Carolyn Regan: My understanding
is that the payment is on a historical basis and will be phased
out from October when everyone—solicitors and not-for-profit
organisations—will be paid the same fixed fee.
Q96 Mr Mitchell: On performance?
Carolyn Regan: Yes, on performance
and for cases that they undertake and the clients who they see.
Q97 Mr Mitchell: Who are the not
for profit organisations? Citizens Advice?
Carolyn Regan: Yes. Citizens Advice
and Relate, as well, with which we have three contracts in different
parts of the country.
Q98 Mr Mitchell: Right. So you do
not have performance figures for the new system of payments to
say whether their mediation services are adequate?
Carolyn Regan: We will be looking
at that. There is the potential to make that information available
to clients when they choose a mediator.
Mr Mitchell: That would be useful. I
am thinking of having mediation myself. Thank you.
Q99 Chairman: Mr Mitchell's point
is covered in paragraph 3.5 on page 17. I accept that you have
now said that it will change, but it is still interesting to note
that that paragraph reads: "Figure 6 shows 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." That raises one question: why?
Carolyn Regan: That goes back
to a previous answer about ensuring the right capacity in the
mediation world and that it is equipped for these new challenges.
It will effectively disappear in October when we implement the
new fixed fees for everyone.
Chairman: All right. Thank you.
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