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Lord Meston: In fully supporting every remark made by the noble and learned Lord, Lord Archer, may I also speak to my amendments in this group, beginning with the second, No. 176, which is designed to moderate in some way the provisions of Clause 24. Clause 24 provides that legal aid for representation will generally not be granted because mediation is considered more appropriate than taking proceedings, except in classes of proceedings or other circumstances to be prescribed. That means that a party of modest means will not have a straight choice between mediation and legal representation, and it is really part of the pressure for mediation which was referred to earlier in our debate in relation to Clauses 12 and 13. It overlooks the fact that lawyers are often the best mediators, particularly in financial disputes. I would readily accept that mediation has an increasing respectability, but I suggest that the presumption in favour of mediation should be modified until the workings of this Bill are tried and tested in practice. The noble Baroness, Lady Faithfull, referred, quite properly, to the increasing confidence in mediation. She is right, but it is not yet universal.

It is also unclear as to what is to be the extent of legally aided advice short of representation. If legal advice short of representation is available throughout the mediation process, so much the better; but one must not lose sight of the fact that the mediators, in financial situations particularly, will be trying to mediate within the existing framework of statutory law governing financial provision and property adjustment. It is not clear, to me at any rate, what are to be the exceptions under Clause 24. We must remember that it is not just in cases where there is a lot of money around that there is complexity. People should have the ability to have recourse to law rather than to mediation. They should certainly have the ability quickly to go to court in the circumstances to which the noble and learned Lord, Lord Archer, referred, where there is obstructive behaviour or non-co-operation or indeed where there may be dissipation of assets to frustrate the mediation

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so that an injunction is necessary. Without the fall-back of recourse to law with proper legal representation, the vulnerability of the weaker party to accept a less-than-perfect mediated settlement may be very hard to resist.

The other amendment I wish to speak to is No. 175. Clause 23(6) says that for the purposes of subsection (4) the nature of the property and where it is situated are immaterial. That, as I understand it, is not stated in the existing provisions of the Legal Aid Act. It has never been thought necessary by the Legal Aid Board or its predecessor, the Law Society, in administering the Legal Aid Fund. As I have always understood it, a common-sense view has been taken of what realistically the statutory charge can be enforced against.

Although in theory the statutory charge may be applicable to many of the assets, many practitioners have to argue about including the family budgerigar in its cage or the picture in the smallest room of the house. In practice, the Legal Aid Board takes a practical view. But I wonder what is the utility of subsection (6) of Clause 23. Presumably it is not envisaged that washing machines in Timbuktu will be subject to the statutory charge and we seem to have managed pretty well without that provision so far.

Lord Archer of Sandwell: Perhaps I can delay the Committee for one further moment for two purposes. First, I wish to express my agreement with what was said by the noble Lord, Lord Meston, particularly in relation to what he said about the danger that a vulnerable party may be coerced into accepting a mediated settlement. This has been described as a "rogue's charter". For example, a husband may say to his wife, "You will accept the settlement which I am now proposing or you will have to go by way of legal proceedings and you will suffer the clawback".

The other point I want to make is that I agree, as I anticipated I would, with what was said by the noble Baroness, Lady Hamwee. Perhaps I can add one further reason to the reasons she listed. I believe that there is general agreement that when the parties choose mediation in preference to legal advice, that should be for good reasons; because it is the more appropriate course of action. It would be disastrous if they chose it not for reasons relating to merit, but because there is a financial incentive for doing so.

The Lord Bishop of Worcester: I heartily agree with what was said by the noble and learned Lord, Lord Archer of Sandwell, in relation to the choosing of mediation because it is the most appropriate course and not because it is the cheapest. However, I should like to ask the noble and learned Lord the Lord Chancellor whether he agrees that to impose the statutory charge on property that has been recovered or preserved, fits with the process of mediation--because mediation is not a matter of competitive "win or lose". It is a matter of helping to allocate property suitably so that resources are for the benefit of the children. For that reason it is a good argument for exempting couples who mediate from the imposition of the statutory charge. That is what the Bill allows as it stands, making it possible but not

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mandatory for regulations to require such a charge to be made. I therefore prefer the Bill to remain as it is.

I am aware that some may argue that that may persuade some people into mediation who are not suited to it, which is what the noble and learned Lord, Lord Archer, was saying. They may seek mediation only in order to avoid repaying moneys to the Legal Aid Board. That is not an objection which can be upheld. I am sure that mediators always assure themselves that those entering mediation are suited to it; that they would not be able to mediate for those who are not prepared to take a constructive part. Therefore, mediation would not continue where an aggressive spouse was involved who was making demands and bullying the other spouse. Indeed, that is confirmed in Clause 22 of the Bill which inserts a new Section 13B into the 1988 Act. Subsection (3) of the Clause states:

    "A person is not to be granted mediation in relation to any dispute unless mediation appears to the mediator suitable to the dispute and the parties and all the circumstances".

I hope that your Lordships will agree that the amendment may not be helpful. I look forward to hearing what the noble and learned Lord the Lord Chancellor has to say on the matter.

9.30 p.m.

Lord Simon of Glaisdale: Perhaps I may say a brief word about the relevance of legal aid, legal advice and legal representation to the processes with which the Committee is concerned. In mediation, legal advice may well be needed. I would hope that the mediator would indicate to the parties where he thinks that legal advice would help them. In my view, legal representation is entirely alien to the mediatory process. If the matter cannot be entirely mediated and some issue has to go to adjudication, it is at that stage that, for the first time, legal representation becomes necessary or at any rate appropriate in many cases. However, legal representation is an alien influence which cannot help the ordinary mediatory process. The Scottish procedures would be helpful in this respect because I believe that in Scotland there is official recognition of mediation. One would like to know how far Scotland has at all invoked or admitted legal representation or legal advice.

The Lord Chancellor: I think that I should try to take the amendments more or less in the order in which they appear on the Marshalled List. Therefore, I turn first to Amendment No. 172. I am not sure that I fully understand the distinction that this amendment brings into the clause as drafted compared to what we have already. It is intended that the situation should appear to the mediator as suitable to the dispute, the parties and the circumstances. Obviously, if there is to be legal aid for the mediation, somebody has to apply for it. It is intended that that should be the party. The result is that mediation would not be granted unless it appeared to the mediator that it was suitable to the dispute, the parties and the circumstances.

In so far as I understand the amendment, it would provide for joint decision-making. I should have thought that the decision should take account of whether it

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would be suitable for those parties to engage in mediation. There might be many problems about a particular party that would make it unsuitable for that party to be involved in mediation. The potential mediator would probably be the best judge of that. Therefore, I am not sure that the amendment improves matters.

Turning to the other points raised by the noble and learned Lord, Lord Archer, when speaking to his amendment, I have taken the power in Clause 24 to exempt from the principles set out "prescribed descriptions of proceedings" or "prescribed circumstances". I have in mind the kind of circumstances that the noble and learned Lord mentioned, where it is plain that mediation would not be suitable. He mentioned a number and, so far as I recall them, all those he mentioned would be circumstances where it may well be right to make regulations to exempt the application of the principle.

Amendment No. 173 is an entirely different matter; namely, whether the payment should be to the mediator or the Legal Aid Board. When this was in preparation, we had discussions about it with the mediation organisations and the Legal Aid Board. It may be a matter that should be left fairly flexible. I thought that it might well be convenient for the person who is going to mediation to pay at that time. I can see that certain problems might arise in some circumstances in relation to that.

So far as concerns the legal aid matter, at present I think I am right in saying that where legal aid is given for advice and assistance--for example, ABWOR--the contribution is paid to the solicitor, but where contributions are payable in relation to civil legal aid they are payable to the Legal Aid Board. I believe that the size of the contributions has something to do with that distinction in practice. I am content to consider this matter further in the light of the present attitude of the mediation organisations. It is an important issue, and I am grateful to the noble and learned Lord for raising it.

We come to Amendment No. 174. In a way I am slightly surprised to find the noble Baroness seeking to force me to apply the statutory charge to mediation. She obviously has a concern for Her Majesty's Treasury, which is interesting, but I should have thought it wise to leave that as a discretionary power, because I want to see how the whole thing works. Apart from anything else, mediation will apply to children's disputes where there is no question of the statutory charge applying, because no property is recovered or retained. There are pressures to apply the charge. Obviously the public purse might be interested in that. On the other hand, I am anxious to see how the mediation works in practice before deciding what should happen in relation to the statutory charge, and how it should apply if it is decided to apply it in respect of mediation costs.

Apart from anything else, the statutory charge, if it goes on, involves a degree of cost of enforcement, and so on. It is not a straightforward matter. Costs are involved in relation to the statutory charge. Depending upon the level of the mediation charges and costs, we may need to be careful.

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I was asked about the provision of legal advice in relation to mediation. As my noble and learned friend Lord Simon of Glaisdale said, there can be no question of representation covering the same area as mediation. That would not be appropriate. On the other hand, legal advice may be required in relation to mediation; for example, on the question of whether or not a mediated settlement is a reasonable one having regard to all the circumstances. I hope that I may be able to develop a standard way of handling that by having a standard fee for the sort of legal advice that might be required on average. There may be exceptional cases, but it may be possible to deal with them. All that is covered under the present Legal Aid Act. We are extending that to mediation but all the machineries of the Legal Aid Act continue to apply.

In Amendment No. 175 the noble Lord, Lord Meston, took us to Hong Kong and to the washing machine. My understanding is that Section 16 of the Legal Aid Act 1988 does the same in respect of the charge for legal aid and I have slavishly followed that provision. If one were to impose a statutory charge in respect of mediation, as his noble friend would wish and oblige me to do, it would seem right to apply the same kind of conditions as apply to legal aid.

I do not believe that Amendment No. 176 adds a great deal. The idea of Clause 24 is to suggest that proceedings relating to family matters are more appropriate for mediation than for litigation. That is the general principle, but obviously it would yield to particular circumstances. That is what the insertion of the word "usually" is intended to do, but I believe that it is implicit in the present situation.

I do not believe that the noble Earl, Lord Russell, mentioned Amendment No. 178. Perhaps I may say for brevity that the circumstance mentioned there would be covered by the regulations which would proscribe descriptions of proceedings. I believe that the noble and learned Lord, Lord Archer, mentioned that circumstance as one of his examples, most of which it would be perfectly appropriate to cover in the regulations. I believe that I have dealt with most of the amendments.

As I am dealing with mediation and what that involves, it may be worth while to put on the record a note which was issued earlier today by the Family Mediators Association and the National Family Mediation. They stated:

    "It is the current practice of family mediators to establish with the couple at the outset of mediation whether they each believe that the marriage has broken down. If there is any indication that they are not agreed, or that they are not certain, then the mediator will explore this and refer them if they are willing for marriage counselling. Throughout the mediation process the possibility of reconciliation is kept under review by the mediator and if any uncertainty emerges about whether the marriage is over or not, he or she will explore this with the couple".

That puts more eloquently what I was trying to say about the process of mediation.

I believe that in respect of Clause 24 there are good reasons in principle why mediation is to be preferred in the interests of all the parties. However, it is right to allow certain types of proceedings to be taken out. That is best done by a regulation-making power because

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experience might suggest some new type of circumstance emerging. Rather than trying to achieve everything in primary legislation, that seems appropriate. I believe that the Delegated Powers Scrutiny Committee had no adverse comment to make on this aspect of the Bill.

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