RIP Family Mediation?

In July, we asked the Ministry of Justice (MoJ) – via a freedom of information submission – what was happening to family mediation referrals following the withdrawal of legal aid from family lawyers in April?

Well, across the UK couples attending publicly funded MIAMs fell by almost half (47%) between April and June compared to the same period in 2012. Meanwhile, the number of family mediations getting underway fell by a quarter (26%) although the true rate of decline is higher since mediations getting underway in April pre-dated the changes to public funding. The Law Society Gazette ran a story with the headline: “Referrals to family mediation plummet”.

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So what does the data tell us? Well, it tells us that standalone family mediation doesn’t sell. This should come as no surprise despite the MoJ budgeting for an increase in the uptake of mediation. In our last freedom of information blog, we demonstrated this by ranking the referral sources for all publicly-funded mediations in 2012/13.

A quick summary: out of the total 75,320 referrals to mediation recorded by the MoJ in 2012/13, less than 12% (6,677) were self-referrals (ie clients taking themselves off to a mediator). A colossal 83% of total referrals came by requiring publicly funded family lawyers to refer their client to mediation before being allowed access to the next tranche of legal aid. The removal of this requirement on April 1st (along with the legal aid) is responsible for the collapse in referrals to mediation between April and June this year.

So what’s to be done? Well, there will no doubt be siren calls from some quarters to reinstate legal aid. Unlikely. And in any case, this would do very little to promote informed dialogue between separating couples. It never did. Only 12% of those 75,000+ referrals to mediation ended in agreement. It may have kept a UK-wide network of mediation services in business but the bottom line is clear: if you make available family lawyers free of charge, separating couples eligible for public funding tend to let the lawyers get on with it.

Unfortunately for the MoJ, the withdrawal of legal aid from those very lawyers has not led to the expected boom in family mediation. Impacted lawyers are innovating as evidenced by the advent of unbundled services on partial retainers. Low-cost fixed fee packages are becoming de rigeur alongside piecemeal support for litigants in person. Combined, the aforementioned could yet sound the death knell for the country’s much prized standalone mediation services.

This would be a tragedy since we know family mediation is exceptionally efficient when underway (over two-thirds of mediations in 2012/13 ended agreement) yet fewer and fewer separating are deciding to mediate. By any measure, this is a serious market failure not least because the alternatives – lawyer-led negotiations and being represented at court – are hugely more expensive and can hardly be labelled a stress-free easy ride.

Moreover, the market failure is much larger than the plight of eligible clients not finding their way to publicly-funded mediation. The enduring failure of family mediation to embed itself as a compelling option at a time of separation is bad news for separating families on all incomes but particularly those earning an average salary. Family lawyers do not come cheap and paying a senior practitioner north of £180 per hour + Vat for open-ended negotiations, can be a source of anxiety in itself.

And it is doubtful – at least in our minds – that future measures to make MIAMs “compulsory” will make the situation any better. Turning family mediators into “FM1-form dispensers” on the road to court, isn’t going to encourage mediation. It is merely the last lever the MoJ has left to pull as gatekeeper to a publicly funded judiciary.

The answer lies elsewhere and is rooted in market forces. Given standalone mediation cannot sustain itself without the lawyer as gatekeeper, a new mechanism is clearly needed to better incentivise referring lawyers – and potential clients – when it comes to  suggesting mediation.

But as family lawyers committed to dispute resolution know only too well, suggesting mediation to their client is literally only half the story. The same lawyer’s ability to constructively influence the decision-making of their client’s ex-partner (Party B) is weak, if not counter-productive.

And neither is the mediator’s hand terribly strong when it comes to converting Party B. Unlike a lawyer, a family mediator cannot offer Party B any legal advice or overtly empathise with their point of view; the two things that led Party A to a family lawyer who suggested mediation in the first place. When a mediator invites Party B to attend a MIAM, they are doing Party A’s bidding. And charging Party B up to £100 plus VAT for the privilege!

Enter lawyer-supported mediation. We devised the approach as a lawyer-to-lawyer service to help hurdle the considerable and historic barriers to more people choosing to mediate. It revolves around the following:

  1. Meaningful remuneration for lawyers when supporting a client at mediation and;
  2. A professional go-between whose job it is to better meet the needs of Party B and ensure more separating couples choose mediation from the outset. (Else, referring lawyers will not be reliably remunerated!).

Right now, we’re introducing lawyer-supported mediation to hundreds of family lawyers across the UK. Whether they see value in what we’re saying, only time will tell. It will at least provide a useful snapshot of how the gatekeepers to family law services are approaching mediation in 2013.

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