MPs question low take-up of mediation in family legal aid cases

Family solicitors failing to refer publicly funded clients to mediation are wasting £10m of legal aid budget, according to the House of Commons’ Public Accounts Committee.

The findings were published in a report (HC 396) released earlier this week following evidence given to the committee by the Legal Services Commission about its plans for the improvement of the family legal aid system.

The LSC said it intends to change the system of client referral in family mediation so that all clients are referred to a mediator before proceeding to the next stage of legal aid funding, and mediators rather than solicitors assess whether the use of mediation is appropriate. It also revealed plans to monitor more closely the quality of mediation services provided.

National Audit Office figures showed that only 20 per cent of those receiving legal aid and for whose cases mediation was suitable had used it. Two thirds of clients in the survey had discussed mediation with their solicitor and of those who had not 42 per cent said they would have tried it had it been explained to them. This would have led to a potential saving of up to £10 million a year. Mediators themselves pointed to the lack of information about mediation as one of the main reasons for the reluctance to use it, while there was also an engrained view that only a solicitor would defend a client’s interest and that a mediated agreement could not be made as enforceable as an agreement reached in court.

The Public Accounts Committee has recommended that the Commission should look into the costs and benefits of helping to pay the mediation costs where only one of the parties is legally aided. A pilot study conducted by the Commission showed that seeking the views of the children involved had resulted in slightly better outcomes for all concerned in the breakdown and it is now seeking a meeting with the Children’s Commissioner to take the issue forward.

Commenting on the report Richard Miller, Law Society Legal Aid manager, regretted that little information was available about the reasons why mediation had not been suggested. "Some cases are not suitable for mediation and it would have been interesting to know what analysis there had been as to why mediation was not recommended. Cases involving domestic violence, for instance, or child abuse are generally consider inappropriate for mediation. There is no indication as to whether this has been taken into account in the report."