Examination of Witnesses (Questions 100-119)
LEGAL SERVICES
COMMISSION
MONDAY 12 MARCH
2007
Q100 Mr Wright: May I just clarify
something mentioned earlier? Sir John, the NAO completed and finalised
the Report in June 2006. Is that correct?
Sir John Bourn: I made a mistake
there. It was later, and of course the publication date of the
Report was March.
Q101 Mr Wright: That is fine. I shall
hang my questions on the three principles in paragraph 3.15: "the
willingness of the two parties to commit to the process, engagement
of experienced and skilled mediators, and support for the process
from the client's solicitor." On the first principle, I was
struck by what is written in the box at the top of page 13: "When
there are two people who can't stand each other no amount of talking
will resolve matters."
Let me think about my own marriage: if I phoned
Mrs Wright this evening and said to her, "I am sorry, but
I would like a divorce," I do not think that any amount of
mediation would help—to be honest, she would want to see
my head on a pole in Parliament Square. Is it not true that, in
many cases, divorce is so acrimonious that mediation is not appropriate?
More importantly, is it not also true that the
culture in this country is such that those matters are resolved
by the legal system? For example, paragraph 2.6 reads: "Some
of the comments suggest that one of the biggest obstacles to be
overcome is an expectation among many people that divorce and
separation can be settled only through traditional legal routes."
How on earth can you change the legal system? In answer to earlier
questions, you hinted that greater publicity would be needed,
but is that really good enough?
Carolyn Regan: I think that better,
clearer information is one part of it. You are right to refer
to the hidden cultural issues. Part of the answer is to ensure
that people know what mediation is, how highly skilled and trained
mediators are and about their successful outcomes in avoiding
the courts. It is partly about publicising what mediators do and
what skills and training they have had, and partly about ensuring
that solicitors promote them as an effective way forward.
Q102 Mr Wright: That answer brings
me to the second principle—the engagement of experienced
and skilled mediators. Paragraph 3.14 mentions that one in four
people made negative comments, and some of the examples are very
damning. People said that: "the mediator had not been good
at his or her job, had been rude, unsympathetic or inexperienced,
had not been impartial, made the client feel pressured and was
unfair." Again, how on earth are you going to change that
sort of thing? To take up the point that you raised with Mrs Goodman,
what on earth are you going to do to improve skills and experience
and to make people feel comfortable on what is, in any case, a
stressful occasion?
Carolyn Regan: Part of what we
will be doing with mediators is monitoring their performance in
terms of the quality of service that they offer, and part of that
will need to involve feedback from clients. Over time, if we find
that X mediator gets particularly bad feedback from the clients
that they see, we would want to follow that up with a conversation
and, ultimately, take a contract sanction and not contract with
them.
Q103 Mr Wright: That is a good point.
Paragraph 3.13, which Mr Mitchell mentioned, shows that there
are wide variations in the proportion of cases that fail to reach
agreement. The memo that you have provided says that you will
provide: "enhanced monitoring and performance management
systems that will recognise mediation providers who are achieving
the best outcomes for clients". With the greatest respect,
that is a bit bland. Could you put more meat on the bones and
tell us about the actual processes and systems that you will put
in place?
Carolyn Regan: What we are looking
to do, as part of all this, is to contract only with those Legal
Aid lawyers who become preferred suppliers. That means that they
have to meet certain quality standards and give feedback on clients'
views and that we would audit their work through peer review and
case assessment. We would be looking at the outliers on key performance
indicators, such as mediators who do not reach the same level
of agreement as other mediators with a similar client mix or solicitors
who have very low ongoing referral to mediation, given the new
system. If we found that someone was a complete outlier, we would
then have a conversation with individual firms
Q104 Mr Wright: Okay. The third principle
is support for the process from the client's solicitor. I was
struck by a quote from someone on page 13, who said, "My
solicitor never mentioned mediation, but I did receive a letter
stating that I had declined mediation." What strengthened
processes and systems have you put in place to ensure that that
no longer happens?
Carolyn Regan: The new system
presumes that mediation will go ahead, rather than providing for
an automatic opt-out.
Q105 Mr Wright: That seems fairly
soft. It still seems that the current situation could arise again.
Carolyn Regan: I think that it
is much less likely to happen, partly because of the fixed fees,
which reward efficiencies from the solicitor's angle, and partly
because of tighter contract management and the fact that we make
sure that solicitors who become preferred suppliers show good
performance in terms of their referrals to mediation. So a number
of things—from how we will pay solicitors in the future
to having incentives in the right place—will drive some
of the changes.
Q106 Mr Wright: Page 4 of your memo
says, "Solicitors will receive the fixed fee regardless of
whether they make a referral to mediation or not. However, if
they refer to mediation at an early stage and it resolves the
dispute the firm's profit margins on the fixed fee will be maximised."
I have two broad questions about that. First, how will heightening
the profit margins of solicitors firms affect efficiency for the
public purse? Secondly, what is to prevent a firm of solicitors
from using its experience quickly to assess the situation and
then saying, "This is going to be a fairly bog standard divorce
case. This could be solved through mediation. We'll get this one
in quick and get the fat fee"—sorry, the fixed fee;
that was a Freudian slip—"but we'll make sure the clock
is ticking for more complicated matters"? The solicitor is
getting enhanced fee revenue on both sides, is he not?
Carolyn Regan: They are getting
one fee that would encourage the efficient use of mediation. The
idea is that, when cases are resolved at mediation, they will
get that fee, which should encourage greater consideration of
that as an option.
Q107 Mr Wright: So am I wrong in
thinking that, if it is a fairly acrimonious divorce and it takes
18 or 24 months, solicitors will get only that fixed fee regardless
of how long it has taken?
Carolyn Regan: That is right,
and they will not in future be getting the hourly rates by which
we currently pay them. That is a huge change for solicitors, it
has to be said, across all legal aid.
Mr Wright: Okay, thank you.
Chairman: I believe that there are a
couple of supplementaries, from Mr Touhig and Mr Mitchell.
Q108 Mr Touhig: I am grateful. I
apologise, I had not read the letter from the Family Mediators
Association before we started, and I pursued some questions about
compulsory mediation that were better explored by my colleague
Austin Mitchell, who had read it.
In the letter, the Association says that, under
your new proposals, you are going to move the point at which solicitors
are required to refer publicly funded couples to mediation from
the time of the initial request for help to a point just before
they go to court. It goes on to say: "Much of the work—such
as financial disclosure—will have been done by solicitors
well before the clients are referred to a family mediator",
if that is the outcome. It says that that will cost more than
the current costs. Why are you moving this from the initial point
of contact? If I were to go to a solicitor, he would currently
initially say, "There is the option of mediation." Now
you are pushing that requirement right the way back, so my solicitor
could do a lot of work and knock up some bills at the taxpayer's
expense. Why?
Carolyn Regan: I am afraid that
I had not seen those specific comments, but I will follow up that
conversation outside this hearing.
Q109 Mr Touhig: But is that what
is happening—are you moving the point back?
Carolyn Regan: We are saying that
all solicitors must refer to a mediator before a representation
order is applied for. That will be done with an initial conversation
and then an assessment test. We are trying to make it more flexible
so that it can actually be earlier in the process. That is the
conversation that I will need to have with that organisation.
It can be earlier in the process instead of later if that works
for the couple.
Q110 Mr Touhig: Are solicitors required
to advise a couple on mediation at present?
Carolyn Regan: Yes.
Q111 Mr Touhig: And is the requirement
upon a solicitor to do that immediately when a couple, or one
of the parties, comes into seek advice?
Carolyn Regan: It is an option.
Instead of making it a one-off, we are trying to make the system
more flexible and encourage more people by saying that clients
can go to mediation at different stages of the process rather
than, as at present, at only one point.
Q112 Mr Touhig: The Family Mediators
Association suggests that you are actually moving the time frame
back.
Carolyn Regan: We are actually
making it more flexible. It can come earlier in the process—
Q113 Mr Touhig: You never worked
for the National Health Service, did you? This is not the doctors'
contract all over again, is it, where they got paid more for doing
less?
Carolyn Regan: I worked for the
NHS for a long time.
Mr Touhig: Ah.
Carolyn Regan: I had nothing to
do with the doctors' contract, may I say?
Q114 Mr Touhig: It would be helpful
to us if you were to have sight of this letter. Perhaps you could
reply to the Committee, and perhaps the NAO could give us a view
on the point made in the letter as well.
Carolyn Regan: I would be pleased
to do that.8
Q115 Mr Mitchell: Actually, that
was my point, too. There are two letters, one from National Family
Mediation and the other from the Family Mediators Association.
Both make similar points and forecast doom and disaster. I am
getting used to lawyers writing to me to say that they are going
to go bankrupt and be destitute, hanging around their streets
with their trouser bottoms hanging out if you pursue the Legal
Aid reforms that are going through. Could you evaluate the two
letters and give us your answer?9
Carolyn Regan: I would be happy
to do that. As I said, I have not had sight of either letter.
Q116 Mr Mitchell: I accept that.
The photography in NAO documents is marvellous,
but in this one, it is brilliant. There is a child thinking, "If
only David Cameron got in and gave us the married couples' family
allowance back, I would be able to watch television in peace."
Sir John Bourn: I recognise your
expertise and photographic lesson, Mr Mitchell. Thank you.
Q117 Chairman: I have to say, Sir
John, that this photograph is a bit sexist, because the woman
is shouting at the man, who is listening in a resigned—
Sir John Bourn: We thought of
that.
Janice Lawler: We had a discussion
on that and assumed that it is worse to ignore someone than to
shout at them.
Chairman: As my Clerk says, these people
are so poor they cannot afford shoes.
8 Ev 18-19
9 Ev 20-23
Q118 Mr Bacon: How much were these
actors paid?
Janice Lawler: This is just a
standard photograph.
Q119 Mr Bacon: Where did you get
it from?
Janice Lawler: You download them
free from—
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