Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Justice Contents

7  Mediation

The Government's objective

139. The Ministry of Justice told us in its submission that "The continued availability of legal aid for mediation was a key mitigating factor in the decision to remove legal aid from private family law proceedings."[225] Mediation was also seen by the MoJ as key to another of the LASPO objectives:

    One of the objectives of the LASPO reforms was that in private family law cases …couples should be encouraged wherever possible to resolve their disagreements as early as possible, and without recourse to court proceedings and unnecessary legal expense.[226]

Consequently, the MoJ estimated removing family law from scope would lead to an additional 9,000 Mediation Information and Assessment Meetings (MIAMs) each year.[227] The opposite happened. Despite the continued funding of mediation the number of such meetings declined by an estimated 17,246 following the introduction of LASPO, a fall of 56 per cent.[228] The NAO estimates that the MoJ underspend on mediation in 2013-14 was around £20 million.[229]

140. In its report, Implementing reforms to civil legal aid, the National Audit Office concluded that "The Ministry currently has a limited understanding of what influences people to go to court, but it is seeking to develop this."[230] In evidence to the Public Accounts Committee, on the National Audit Office's conclusions, Dame Ursula Brennan, Permanent Secretary at the Ministry of Justice, accepted that the assertion in the impact assessment for LASPO, that the availability of publicly-funded mediation would deter people from going to court was a claim for which the Ministry of Justice "didn't have evidence".[231] Catherine Lee, Director General of the Law and Access to Justice Group at the Ministry of Justice, said the expected increase in mediations was based on:

    …the fact that when we first introduced compulsory mediation for legal aided people back in '97, there had been just 400 mediations at the time. That went rocketing up, by the time we were writing the legal aid review consultation, to the thousands; I think it was 13,000…and partly the assumption that if you are taking away legal aid for people going to court but providing it for people to go to mediation, they would take up that option.[232]

When we questioned Mr Vara about Dame Ursula and Ms Lee's evidence he told us:

    we had to take a lot of decisions, or the predecessor to the present Lord Chancellor had to take decisions, along with his then team. They had clearly expected that there would be a greater uptake on mediation. What they had not anticipated was that the requirement for behavioural change and the encouragement required for that would be more than was around at the time.[233]

Why did the number of mediations fall following LASPO?

The end of compulsory mediation assessment

141. Prior to the introduction of LASPO on 1 April 2013 all litigants in receipt of legal aid in private family law proceedings had to attend a MIAM as a condition of receiving public funding.[234] With the removal of family law from the scope of legal aid this channel towards mediation ceased. The Children and Families Act 2014 requires anyone who wishes to issue private law proceedings in the family court to attend a MIAM, but this only came into effect on 1 April 2014.[235] Jane Robey, of National Family Mediation, told us the "vacuum of a year" in which no one was required to go through mediation assessment had contributed significantly to the fall in MIAMs:

    There was the pre application protocol, which said that people should come or that judges should advise people to come to a MIAM, but it was a protocol…judges and courts were not under any obligation to make any kind of referral, and that is one of the fundamental reasons that the collapse in mediation numbers has taken place.[236]

The role of solicitors in referring clients to mediation

142. We were also told that the fall in MIAMs was caused by potential family law litigants being unable to access sufficient information about mediation. Sir James Munby, President of the Family Division, told us that "there is a desperate lack of information available to those coming into the system" and that this, at least in part, was likely to be because "one important route to mediation, namely encouragement from solicitors, [has] disappeared."[237] Dave Emmerson, of Resolution, told us that when legal aid was available for family proceedings "lawyers…did an awful lot of selling of out-of-court solutions and were better able to explain how mediation works, which is a very difficult concept. With that funding not available, then the publicity around mediation just isn't there."[238] The Family Justice Council noted that, although legal aid is still available for mediation, there is now "almost no legal aid lawyer involvement in legally aided mediation processes. Of 82,432 family claims made in England and Wales between April and October 2013, just 20 included help with mediation claims. By contrast, in the preceding 12 months lawyers made 62,390 'funding code' referrals to publicly funded mediation."[239] National Family Mediation told us that solicitors were not telling people legal aid was available for mediation because it was "not in their interests" for them to do so.[240] Resolution told us that:

    The LAA's approach to matter start allocation fails to promote Help with Mediation. Although mediation starts are not limited for mediator providers, Help with Mediation matter starts are included within allocations of limited schedules of Legal Help matter starts, which legal aid providers report having to ration…there is no guarantee of increased matter starts for doing Help with Mediation.[241]

143. The Ministry of Justice's response to its consultation on the legal aid reform proposals noted that a "key issue raised" by contributors to the consultation was that there was "the potential for a decline in mediation take-up due to the loss of the (legal aid funded) referral system through solicitors."[242]

Poor quality public information on mediation and the continuing availability of legal aid

144. Sir James Munby echoed other witnesses when he told us that the problem was not the availability of information about mediation but its accessibility:

    The trouble is that without a public education solution somewhere on the web where you can get easy access to information of a trustworthy and impartial sort, the first time that many people bump up against mediation is when they go into the court office and get the 20-page form that spends 12 pages asking them incomprehensible questions about MIAMs… One of the problems is that we have too much material. Every agency in the system has stuff on its website about mediation and stuff about LIPs. There is no coherent strategy. There is no obvious port of call.[243]

While difficulties in accessing information on mediation were not a consequence of LASPO, they exacerbated the impact of removing solicitors from the process following the changes in scope to legal aid. In its response to its consultation on the proposed legal aid reforms, the Ministry of Justice said:

    We are working with providers of mediation services on plans to increase awareness and use of mediation and to help people to better understand the options available to them. Information about mediation is currently available on the MoJ website and other online sources.[244]

145. It is unclear how much work was done on providing easy to access, reliable information on mediation prior to the introduction of LASPO. The Family Mediation Taskforce, however, reporting in June 2014, clearly considered the publicity around mediation inadequate as it recommended that the "MoJ should undertake a sustained low level campaign to increase awareness" and welcomed "the consideration currently being given by MoJ to the creation of a single authoritative, lively and interactive web presence and help line (our emphasis)."[245]

146. We heard that the public information on the continued availability of legal aid for mediation was poor. Mrs Robey told us:

    If you looked at the MOJ website, immediately after LASPO it said there was no legal aid available…Now it has a basic calculator. Basically, you are eligible for legal aid if you are on some passportable benefits, but it is more complicated than that. You could be eligible for legal aid if you take into account all sorts of other factors. So they need to provide much better information rather than this bald, "You're either in or you're out."[246]

Mrs Robey's evidence was corroborated by evidence received by the National Audit Office's to the effect that "the Ministry's promotion of the fact that mediation remained in scope for civil legal aid was inadequate."[247] This reflects criticism from witnesses of the poor provision of information on eligibility under the legal aid scheme more generally (see paragraphs 13 to 19).


147. The Ministry of Justice responded swiftly to the fall in mediations. A Family Mediation Taskforce led by Sir David Norgrove was set up early in 2014 and reported in June 2014. The Taskforce recommended a range of measures.[248] Those taken up by the MoJ include:

·  Funding 'one single mediation session for everyone', if one of the parties is already legally aided. (At present only the legally aided party can have the session for free, meaning there is a cost for the other member of the couple, which can deter them from taking part)

·  Setting up an advisory group of experts to improve practice and make sure mediation is focussed on the best outcomes for any children involved

·  Reviewing future Legal Aid Agency (LAA) contracts with mediation providers to improve service

·  Exploring options for reforming the management of the mediation sector

·  Expanding the ongoing campaign to increase awareness of mediation and legal help for mediation, and the availability of legal aid for it.[249]

148. The figures for mediation following the introduction of compulsory MIAMs in April 2014 suggest that the provision is having a positive effect.[250] The impact of the adoption of recommendations by the Taskforce in August 2014 will only begin to become apparent in the next set of legal aid statistics but Sir James Munby was cautiously positive when he told us: "The figures [on mediation] are getting better, and I suspect that over the next year or two we will get back to where we were three years ago."[251]

149. The fall in the number of mediations for separating couples following the introduction of LASPO was a consequence of the end of compulsory mediation assessment, the removal of solicitors from the process and the inadequate attention given by the MoJ to providing clear, reliable and easy to access advice on mediation and on the continuing availability of legal aid.

150. It is unclear to us why the requirement for attendance at a Mediation Information and Assessment Meeting before a litigant can issue court proceedings was not included in the 2012 Act. This indicates an unfortunate lack of 'joined-up' thinking in the preparation of the new legal aid regime.

151. In contrast to its sluggish response to the shortfall in the number of exceptional cases funding grants, the Ministry of Justice responded quickly to the decline in the number of mediations following the introduction of the legal aid changes by setting up the Family Mediation Taskforce under Sir David Norgrove and adopting many, although not all, of its recommendations.


152. The Family Justice Council (FJC) told us that the fall in the number of MIAMs had caused "significant pressure on the mediation industry resulting in the closure of many services." The FJC also said:

    Many more solicitor based mediation services are turning their practices towards fixed fee legal services. The not for profit sector providing mediation services is already shrinking and given both the reduction in the numbers taking up mediation and cuts in funding as a result of other government policies, will soon disappear. Once the supplier base has been lost, it is difficult to see how it could be rebuilt quickly.[252]

National Family Mediation told us that the fall in mediations had resulted in five of its services going into administration and "many more…teetering on the brink of collapse."[253]

153. The Director of the Legal Aid Agency, Matthew Coats, however, was confident that there were sufficient mediation providers to satisfy the anticipated increased demand:

    We have got about 270 mediation providers providing services in about 1,700 locations. Given the issues that we have seen, we have decided to extend the contracts for a period and, indeed, to seek new providers to encourage access. We have received applications from around 65 more organisations that want to provide services. We are assessing that at the moment, to see whether they will be added to the network.[254]

154. The fall in the number of mediations in the family courts which took place after the coming into effect of LASPO will inevitably have had a significant impact on providers of mediation services. We were encouraged to hear that the Legal Aid Agency has extended the contracts for suppliers and is seeking new providers in anticipation of an increase in mediations. We recommend that the geographical distribution of mediation providers is kept under review to ensure all those who need to access mediation are able to do so.

Encouraging behavioural and cultural change

155. One of the justifications the Minister gave us for making the legal aid reforms without significant evidence of the legal aid system then in place was the Ministry of Justice felt removing legal aid would force potential litigants to find other more appropriate ways of resolving their disputes. "There was…the feeling that a large part of those savings would enable the ultimate end users of the legal services—the public—to be better served by not going through the legal route but by other routes, such as mediation and the like".[255] The fall in mediations, together with the rise in the number of litigants in person, suggests however that this sanguine view was misplaced.

156. The MoJ rejected some of the Family Mediation Taskforce's recommendations, including that the MoJ pay for all MIAMs, whether parties are legally-aided or not, for a period of twelve months.[256] Jane Robey, Director of National Family Mediation, was critical of the MoJ for rejecting this recommendation, noting that the cut in financial eligibility rates for legal aid meant the number of couples receiving a free session was limited:

    If you were to provide for a limited period, to anybody applying to court, a Mediation Information and Assessment Meeting for free, we, the mediation providers, would be able to convert people or tell people what mediation is and start to drive the culture change that makes people think about resolving their disputes without going to litigation.[257]

157. In evidence to us, the Minister agreed that such a culture change was crucial to the Government objective of encouraging couples to resolve their differences out of court: "The difficulty we have with mediation is that it requires a behavioural change. We have all heard people saying, "I'll see you in court." I am not aware of anyone ever having heard, "I'll see you at mediation.""[258]

158. The Ministry of Justice hoped and assumed that without legal aid more people would resolve their difficulties outside court, as a large majority of couples already do. The fall in the number of mediations as well as the rise in the number of litigants in person shows that the Ministry of Justice was wrong. We recognise that the court process is not, in many cases, an effective means of reducing conflict between parties and presumably to reach and carry out agreement. We strongly support the use of mediation for separating couples where appropriate. We agree that a behavioural and cultural change which sees the public resort to mediation in the first instance is desirable. We would like to see the number of mediations exceed the figures achieved prior to the unintended consequences of the legal aid changes. We recommend the Ministry of Justice adopt the recommendation by the Family Mediation Taskforce that the Government fund all Mediation and Information Assessments Meetings for a year, to encourage behavioural change. The cost of this approach can be met from the money saved by the initial shortfall in the number of mediations.

225   Ministry of Justice (LAS0073) Back

226   Ibid.  Back

227   Implementing reforms to civil legal aid, NAO, HC 784, Session 14-15, November 2014, p7. Back

228   Ibid, p4. Back

229   Ibid, p13. Back

230   Ibid. para. 2.5 Back

231   Public Accounts Committee, Oral evidence: Implementing reforms to civil legal aid, HC 808, Thursday 4 December 2014, Q56 Back

232   Ibid, Qq 59-60 Back

233   Q 323 Back

234   Q 97 Back

235   Section 10(1). Rule 3.8 of the Family Procedure Rules sets out exemptions to the requirement to attend a MIAM prior to making an application to the court. Back

236   Q 97 Back

237   Q 286 Back

238   Q 96 Back

239   Family Justice Council (LAS0082) Back

240   National Family Mediation (LAS0016) Back

241   Resolution (LAS0037) Back

242   Reform of Legal Aid in England and Wales, Government Response, June 2011, Para. 55 Back

243   Q 286 Back

244   Reform of Legal Aid in England and Wales, Government Response, June 2011, Para. 73 Back

245   Report of the Family Mediation Taskforce, June 2014, Ministry of Justice, p3. Back

246   Q 100 Back

247   Implementing reforms to civil legal aid, NAO, HC 784, Session 2014-15, November 2014 para 2.9 Back

248   Report of the Family Mediation Taskforce, June 2014, Ministry of Justice, pp3-4. Back

249   Press Release, Ministry of Justice, 20 August 2014. Back

250   Legal Aid Statistics in England and Wales, Legal Aid Agency, Apr to Jun 2014, Figure 7.1; Legal Aid Statistics in England and Wales, Legal Aid Agency, Jul-Sept 2014, Figure 7.1 Back

251   Q 286 Back

252   Family Justice Council (LAS0082) Back

253   National Family Mediation (LAS0016) Back

254   Q 327 Back

255   Q 292 Back

256   Report of the Family Mediation Taskforce, June 2014, Ministry of Justice, p3 Back

257   Q 98 Back

258   Q 306 Back

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Prepared 12 March 2015