'Two-tier' family justice system needs more government support

Free mediation sessions will now be available for both parties involved in a separation, even if just one qualifies for legal aid.

Family justice minister Simon Hughes said: "We know mediation works and we are committed to making sure more people use it rather than go through the confrontational and stressful experience of court. That is why we are funding single mediation sessions for both parties if one of them is already legally aided."

Before the new scheme was announced, only a legally aided party could have a mediation session for free which could deter them from taking part.

Open minds

Commenting on the government's plans, Jane Robey, chief executive of National Family Mediation (NFM), said: "We know from 30 years' experience that family mediation works and provides lasting solutions, with full agreements being reached in seven out of ten cases - without the need for a courtroom drama. Getting people into the mediation room with open minds can be amongst the biggest challenges. Confidence in the process blossoms as people start to understand and accept that family mediation can help them shape their family's future in an affordable way.

"This new scheme can help thousands of people across England and Wales take a vital first step to unlock an understanding of what family mediation can achieve. Mediation puts families in control of their post-separation future instead of handing it over to family courts. It's a much quicker, less confrontational and a more cost-effective way of settling family breakdown."

Robey concluded: "Separating people are often reluctant to pay for family mediation, especially so when they know the other person - their ex - is getting it for free. They rarely understand exactly what they will be paying for and, apprehensive about coming since mediation is usually an unknown quantity, they are unsure it will work."

Critical Caplen

However, Law Society president Andrew Caplen called on the government to do more to help separating couples understand their legal rights on separation or divorce: "An increase in government funding to support separating and divorcing couples is welcome, but we do not expect this measure to make a significant impact on the number of couples resolving their disputes away from the courtroom. This will only help those couples where at least one person is eligible for legal aid, and the eligibility rules are tightly drawn.

"Since the legal aid cuts in April 2013 the number of publicly funded mediation information and assessment meetings and mediations has fallen significantly. Whereas in the past a solicitor would be able to refer couples to mediation, this referral source hardly exists due to the removal of legal aid from most private family law cases.

Caplen added: "The real story in family justice is the increasing number of people who, since the legal aid cuts, are neither going to see a lawyer nor a mediator, but are representing themselves in the family courts, creating huge difficulties both for themselves and for the courts. There is a two-tier family justice system - between those who can afford professional advice, and those who cannot but still need to pursue applications for contact, residence or maintenance for their children and have nowhere else to turn.

"The Ministry of Justice does not appear to have appreciated the inevitable outcome of the legal aid reforms. They are pinning their hopes on signposting couples to mediation, but mediation is not suitable for everyone. What people really need is someone who they can talk to who is on their side, is able to tell them where they stand legally and can help find the right solution for them with the minimum of distress."

John van der Luit-Drummond is legal reporter for Solicitors Journal