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).
THE MINISTRY OF JUSTICE'S RESPONSE
TO THE FALL IN MEDIATION
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.
THE IMPACT ON PROVIDERS OF MEDIATION
SERVICES
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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