Mediation in the age of reduced legal aid

Alternative dispute resolution methods have been available for many years, but mediation has only recently come to the fore. This follows the government’s sustained promotion of non-court options for resolving family disputes, heralded by the introduction in 2011 of mediation information and assessment meetings (MIAM) to provide couples seeking to commence family litigation with information on the alternatives.

There are now a wealth of effective, non-court options to explore:

• Mediation: couples meet, aided by the neutral input and guidance of a mediator, to talk through issues and work towards agreeing on some common ground. The mediator will provide general legal information and help the parties reach consensus. It is normally helpful for the parties to have some legal advice in parallel with the process.

• Collaborative law: each party appoints independent legal advisers to participate in four-way negotiations. The legal advisers and the couple sign an agreement at the start committing to resolving issues without resorting to court proceedings and working towards a bespoke solution.

• The negotiations conclude with a mutually-agreed resolution and terms which can be approved by the court and made into an order.

• Arbitration: this is a quasi-judicial process where a qualified arbitrator adjudicates on issues that the parties have not been able to agree about. The arbitral award is binding and the arbitrator will produce a reasoned decision supporting the outcome.

The parties can choose an from 220 trained arbitrators with the right skill set from the Institute of Family Law Arbitrators pool, many of whom are eminent retired judges, high ranking barristers and experienced solicitors. For the time being the scope of family arbitration is limited to financial and property issues.
In addition to the DR models set out above, couples can also choose solicitor-led negotiation, and it may be possible to negotiate the outline terms of an agreement themselves.

Mediation and legal aid cuts

Initially, following the introduction of MIAMs, the number of disputes resolved through mediation increased; however, the introduction of cuts to legal aid in April 2013 saw mediation assessments decrease by 56 per cent. In the same year there was a 30 per cent increase in the number of family court cases in which neither party had legal representation, giving rise to significant additional and unexpected costs for HM Courts and Tribunals Service and the Ministry of Justice.

These costs are arising because, with more people representing themselves, family cases invariably take longer and take up more of the courts’ time and resources. The impact of divorce on children is now well-documented: a survey commissioned by Resolution and published this week sets out in statistical detail the detrimental effects on children, effects that Resolution argues can be mitigated by choosing non-court options.

The government has acted to reverse the decline in mediation assessments. First, in April this year attendance of MIAMs was made compulsory before applications for court proceedings can be issued. Second, the government has pursued an awareness campaign about legal aid for mediation (a large pot of money set aside for mediation went unspent last year). in August it introduced funding for a single free mediation session when only one of the parties qualifies for legal aid. Initiatives like Family DR Week can also help to raise public awareness and, with such sound alternatives to court and a wide amount of information available, individuals can explore the option that suits them best. SJ

Finally, in August it introduced funding for a single free mediation session when only one of the parties qualifies for legal aid.  Initiatives like Family DR Week can also help to raise public awareness and, with such sound alternatives to court and a wide amount of information available, individuals can explore the option that suits them best. SJ 

Suzanne Kingston is a partner in the family team at Withers