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The Lord Chancellor moved Amendment No. 97B:

Page 11, line 26, leave out ("this Act") and insert ("the Family Law Act 1996").

The noble and learned Lord said: My Lords, this amendment, to which I referred earlier, corrects a drafting error. I ought to have referred in that part of the Bill to the Family Law Act. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 97C to 98AA not moved.]

Clause 22 [Provision and availability of mediation]:

[Amendments Nos. 98B to 98E not moved.]

Earl Russell moved Amendment No. 99:

Page 12, leave out lines 15 and 16 and insert ("and the parties suitable to the dispute having regard to all the circumstances of the case.").

The noble Earl said: My Lords, to avoid repetition and for the convenience of the House I speak also to Amendment No. 107.

Amendment No. 99 is simply a matter of clarification; to make clear that mediation should only be used where mediator and both parties think it is appropriate.

The noble and learned Lord gave us some assurance about this in Committee--that mediation should not be used where it appears to the parties to be inappropriate--but, of course, we do not know which party. It is possible that one party may think mediation is appropriate, another party may think it is not appropriate. We need some mechanism to resolve such cases.

More generally, we have in the clause a presumption in favour of mediation from which there will be exceptions, contained in regulations which we have not yet seen. The noble and learned Lord conceded that if the parties at the outset do not want mediation then there will not be a presumption in favour of it. But the question which still concerns me is whether there may be other cases, not foreseen at the time of the drafting of the regulations, when mediation may nevertheless not be appropriate and it would be suitable to allow parties who have refused or withdrawn from mediation to have access to legal aid. If the answer is no, then we have the risk of a rather bureaucratic system and perhaps the risk of imposing a code of values.

Assume, for example--and I hope your Lordships will not say this is impossible--a divorce involving two Jehovah's Witnesses. I know they are not supposed to divorce, but not everybody in the world confines themselves to doing what they are supposed to do. Their code of values may not be exactly identical to those employed by the mediators. They may find themselves in a situation where they could perfectly well have reached an agreement by themselves, perhaps with the aid of a couple of solicitors, but having a series of values held by the mediators imposed upon them which they find that they cannot accept. To say that a party in such a situation cannot have access to legal aid is likely to produce a certain amount of injustice.

There is a risk here--which does not apply to my hypothetical Jehovah's Witnesses but might apply to others--of people going round the fences instead of over

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them. A couple of days ago a newspaper reported a most remarkable story of a horse race in which objections were lodged, as a result of which the horse which finished tenth was declared the winner because all the others had been round a fence instead of over it. If we make divorce too difficult there is a risk that people will simply go round the fences; they will separate and form irregular unions with other parties because the bureaucratic procedure of divorce is too uncongenial to them. So, unless we allow some safety valve for ordinary human feelings, we may be in worse trouble than when we started. I beg to move.

Lord Irvine of Lairg: My Lords, I speak to Amendment No. 106 and will make a few observations on Amendment No. 106A in the name of the noble and learned Lord, although he has not yet addressed that amendment.

Clause 24 adds this provision to the Legal Aid Act:

    "For the purposes of determining whether to grant representation for the purpose of any proceedings, recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except--

    (a) in relation to prescribed descriptions of proceedings; or

    (b) in prescribed circumstances".

I emphasise the words "is to be considered" as more appropriate than "taking proceedings".

The effect of the provision is to place upon the Legal Aid Board in the generality of divorce cases a duty to refuse legal aid representation in favour of mediation. The clause means that the Legal Aid Board must, not may, refuse legal aid representation in family proceedings on the ground that mediation is to be considered as more appropriate than taking proceedings.

In practice, Clause 24 bites on cases where parties under the existing rules would be eligible for legal aid for representation in proceedings relating to family matters--for example, disputes about periodical payments, division of family assets or, perhaps even more important, children. But the Legal Aid Board is required to say, "We know that you do not agree to mediation. We know that mediation is supposed to be voluntary and the Government have always said that. But nevertheless, under the statute, we are required to regard mediation as more appropriate, whatever you may think, so there will be no legal aid for court representation but we will represent you in mediation". That is the reality.

If that is the position which the Legal Aid Board must adopt at the same time as it continues to assert that mediation is voluntary, I have no doubt that most people would think that that assertion of voluntariness is a hollow sham.

The purpose of Amendment No. 106 is to qualify the direction to the Legal Aid Board which is contained in Clause 24 by a provision that mediation is not to be considered as more appropriate than taking proceedings where either party to the proceedings does not agree, under Clause 12, to take part in any mediation. Unless that amendment is agreed to, mediation will not be truly voluntary because the Legal Aid Board will have to say

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to applicants asking for legal representation in proceedings relating to family matters, "Sorry, but we have to regard mediation as more appropriate".

At the time that I heard it, I regarded as helpful the response from the noble and learned Lord to this amendment when I moved it in Committee on Thursday, 25th January. The noble and learned Lord's replies are to be found at cols. 1213 to 1216 of Hansard. I observed on two occasions, without any contradiction from the noble and learned Lord, that I understood him to have given,

    "an assurance that he will state, as one of the prescribed circumstances constituting an exception in the regulations, where a party does not wish from the outset to participate in mediation".--[Official Report, 25/1/96; col. 1216.]

However, having read carefully the debate on that amendment in Committee, I am now less clear than I was at the time that the noble and learned Lord was giving as explicit an assurance as I thought that he was giving. Therefore, it will assist me in deciding the position that we should adopt, even at this late hour this evening and certainly on Third Reading, if the noble and learned Lord will be kind enough to confirm precisely the assurance that he was giving in relation to the content of the regulations on this subject.

However, as a matter of principle, I believe that it is not right to leave such a central point in relation to voluntariness of mediation to regulations which are to come in the great hereafter. The critical point, affecting as it does access to legal aid for court representation where mediation said to be voluntary has been declined, must be on the face of the Bill.

For the convenience of the House, in the interests of brevity and because the noble and learned Lord has not yet moved his Amendment No. 106A, I desire to make a few observations. I do not regard that amendment as beginning to meet the point which either the noble Earl, Lord Russell, or myself have made and are seeking to make. First, on a point of detail, I rather think--although the noble and learned Lord will correct me if I am wrong--that his amendment is inaccurately expressed on the Marshalled List. I believe that the amendment should read:

    "Page 14, line 12",

and not "line 13". It should then continue to say,

    "leave out from ('except') to end of line 14".

The provision would then read:

    "For the purposes of determining whether to grant representation for the purpose of any proceedings, recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except--"

and then we would include the words of the amendment--

    "where a mediator has certified for the purposes of section 13B(3) above that mediation does not appear to be suitable; or

    "in such other circumstances as may be prescribed".

A mediator may well think that mediation is suitable and would therefore obviously decline to certify that mediation does not appear to him to be suitable. It seems to me that that does not begin to meet the point made by the noble Earl, Lord Russell, and myself; namely,

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that a party may not want to participate in mediation in reliance on the off-repeated assurance that mediation is voluntary.

In that circumstance, the purpose of my amendment (Amendment No. 106) is that the Legal Aid Board should not be required to regard mediation as more appropriate and, therefore, refuse to provide legal aid for representation where a party chooses not to participate in mediation which that party has been assured is voluntary.

It is no comfort to be told, as Amendment No. 106 implies, that the mediator thinks that mediation is suitable--I suppose I could say cynically, "Well, he would, wouldn't he?"--if a party does not agree and if the Legal Aid Board says "No" to representation on the basis that, under Clause 24, mediation is to be regarded as more appropriate than taking proceedings. That is why, in my submission, Amendment No. 106 is the provision that is required. It makes clear that mediation will not be regarded as more appropriate by the board when a party declines to take part in mediation.

I hope that I have made my position on the matter plain. I hope also that, if the noble and learned Lord has an assurance to give in relation to the anticipated content of regulations on the subject, he will say precisely what he has in mind. For my own part, I have to say that I take the view that this is something which is so important and so central to the assurance that mediation is a voluntary process that it should be dealt with on the face of the Bill.

9.30 p.m.

The Lord Chancellor: My Lords, I shall deal first with the situation regarding Amendment No. 99 moved by the noble Earl, Lord Russell. Under the current provisions of the Bill, a person shall not be granted mediation unless it appears to the mediator that mediation is,

    "suitable to the dispute ... the parties and all the circumstances".

The amendment would provide that mediation should not be granted unless it appears suitable to both the mediator and the parties. The decision would therefore become one to be taken jointly by the mediator and the parties according to the suitability of the case. There would no longer be a requirement to take into account the suitability of the parties themselves for mediation.

The Government believe that it is mediators themselves who will be in the best position to assess suitability of persons and cases for mediation. Of course it is very important that this is done very much in consultation with the relevant party or parties and taking into account their attitude, willingness and other circumstances. Parties may not fully understand the mediation process and will thus be unable to give a fully informed view of suitability in all the circumstances of their case.

As the clause currently stands, mediators will be required to take into account the suitability of the parties for mediation as well as the appropriateness of the case itself. The Legal Aid Board will be concerned to ensure that proper quality assurance criteria are in place to ensure that mediators fulfill this role responsibly. This

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clause will, however, prevent mediators from granting mediation, and so state funding, where a case or person is not suitable for such assistance. If certification as to suitability for mediation is by both mediator and parties, this may give rise to disputes between parties as to their suitability and, without some sort of objective assessment by a third party, may also lead a strong party to coerce a weak one into concurring against the weaker party's best interest with a decision either to mediate or to refuse to mediate. In other words, should that sort of situation arise, the protection of the weaker party is in the mediator. I should add that, as this clause links in closely with Clause 24, it is a mediator who will have to certify suitability and so the responsibility must be entirely that of the mediator, as the grant of state funding for representation may be dependent in part on such certification.

That is not to say that the client will have no part to play in that decision-making process. When assessing the suitability of parties for mediation, the mediator cannot ignore the views of the client. However, consulting with and listening to the client are not the same thing as the client self-certifying suitability. In my submission, Amendment No. 99 is not an appropriate amendment for that reason.

I turn now to Amendment No. 106 of the noble Lord, Lord Irvine of Lairg, to which he has spoken, and my own amendment, No. 106A. These amendments are both concerned with Clause 24. Amendment No. 106, tabled by the noble Lord, Lord Irvine of Lairg, and the noble and learned Lord, Lord Archer of Sandwell, would have the effect of disapplying the presumption in favour of mediation if either party does not agree to take part in mediation. My Amendment No. 106A has at its heart the same wish as this amendment--to make sure that mediation will not be compulsory for those on legal aid. However, my amendment differs from this one in that it requires that parties applying for legal aid who are not involved in a dispute which comes under one of the proceedings to be prescribed in Clause 24 shall have to attend an assessment interview with a mediator in order better to understand mediation and its benefits.

I should say that my Amendment No. 106A is in the Marshalled List in the place where I intended it to be because I wished to keep in place the power to prescribe some types of proceedings in respect of which mediation might not be suitable at all. During the debate in Committee, some concern was expressed that the presumption would lead to people being forced into compulsory mediation. I hope that my amendment, which is designed to make clear the connection between the rebuttal of presumption in favour of mediation in Clause 24 and a mediator's assessment of suitability for mediation under Section 13B(3) of the Legal Aid Act 1988 introduced by Clause 22, will assure those who have expressed this concern that that will not be the case.

Let me try to explain how I see this operating in practice, because I think it is extremely important that in this area any refusal is an informed refusal. I do not want people just to say, "I do not like the sound of mediation". We want them to understand precisely what

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is involved because I think there is a public interest, apart altogether from questions about money and so on, in trying, if we can manage it, to get the process that generates least heat in this area. It may help to set out how I intend that the presumption should operate.

In short, it is assumed that a party requiring legal representation might first approach a solicitor. The solicitor would establish whether the case fell into one of the prescribed categories of proceedings which automatically rebutted the presumption. As I indicated earlier, such cases might be public law Children Act cases or applications for protection measures against domestic violence. Those are two examples which occurred to me as falling into the regulations under head (a). If the case fell into a prescribed category the solicitor could then make an application to the Legal Aid Board for a certificate for representation. If the case did not fall into a prescribed category the presumption could only be rebutted in prescribed circumstances.

The amendment makes clear that one of those circumstances will be that a mediator has certified that the parties were unsuitable and/or the case was inappropriate. The solicitor would therefore need to refer the client to a mediator for an assessment of suitability for mediation. An important criterion of any such assessment will be the attitude of the parties. Any unwillingness to mediate which is persisted in despite assurances and explanations given by a mediator indicates that mediation will not succeed, and so a party or parties who are unwilling are likely to be deemed unsuitable for mediation. There would, in any event, be little point in forcing such persons into mediation.

On the other hand, it seems from experience that in practice it is not uncommon for parties to say no to mediation if asked in very general terms, particularly by a solicitor and particularly one in whom the client has confidence. However, once parties have met with a mediator and had the opportunity to discuss what is involved and its benefits, they often change their minds and become willing at least to try one or two sessions, assuming their partner is also willing. If, despite such a meeting, parties remain unconvinced, they will have been made fully aware of mediation and at least will be making an informed decision not to attempt mediation. It is important that parties are put in a position of fully understanding mediation and how it might help them. Therefore, the object of a suitability assessment is to enable clients, in consultation with a mediator, to make an informed decision about what is the right course of action for them and not to force them into mediation.

That is why I have put my amendment in this way. There is also the point that I believe that the amendment of the noble Lord, Lord Irvine of Lairg, would affect matters only at the outset. It is at least possible that in the course of mediation a disagreement might arise which would lead to circumstances in which it might be appropriate for representation to be substituted. I hope that that would not happen often, but it could happen.

That is my approach to these matters. It is my submission that the relationship between Clause 22 and the mediator's approach to it and Clause 24 is of such a character that an informed decision not to mediate

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would mean that the presumption would not apply. I have kept the flexibility of powers to designate circumstances in which the Clause 24 presumption would not apply. That is an answer to the point made by the noble Earl, Lord Russell, that it is impossible to say now that we know everything. Circumstances could arise that we are not aware of at this stage, and the regulation-making power is the best way of handling that kind of problem.

I hope that in the light of that explanation the noble Earl will feel able to withdraw his amendment.

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