How not to promote mediation…

Family mediators are getting angry. Referrals to mediation have fallen off a cliff since the introduction of LASPO but knee jerk responses by impacted mediators should also be a cause of concern.

A case in point was last night’s Family Justice Council meeting chaired by the President of the Family Division, the Rt. Hon Sir James Munby. The assembled panel was asked to debate whether or not family mediation was fit for purpose.

Panel member Christina Blacklaws argued it wasn’t and likened family mediation to a seriously ill patient on the operating table whom might never come around. She is right. At least the data tell us so.

Now, Ms Blacklaws knows something about meeting consumer demand since she’s Director of Policy at Co-operative Legal Services. It was a little surprising therefore when she added her voice to the chorus of mediators demanding the government launch a public education campaign about mediation to help separating families make more informed decisions.

If I’m not mistaken, this has been tried before. Mediators with long memories will recall adverts in the 1990s picturing Ken and Barbie on either side of a torn divide. It didn’t work then. And it won’t work now.

I say this not as a mediator (although I am trained) and not as a lawyer (I have no legal background). I say this as a communications professional with almost 20-years experience of journalism, publicity and risk management.

The Ministry of Justice would just be wasting taxpayers’ money by promoting family mediation to the public because not enough people would take a blind bit of notice. Notwithstanding the huge amount of cash needed to keep any issue within public gaze, the simple truth is that tens of millions of UK adults are not in throes of relationship breakdown.

It is estimated that around 300,000 UK families separate each year. How many part amicably we don’t know. Of those mired in conflict, we don’t know how many instruct solicitors to sort matters out. Above all, separating couples do not dutifully report to a single source for help and advice. Hearts are most certainly broken, but mediation will never be the Accident & Emergency of family law services.

And even if awareness-raising was a ready-made panacea paid for by someone else, it would not deliver sustainability. Again, it’s all in the data. MIAMs are not mediation starts and while the funding coding referral was sufficient to keep today’s threatened mediation services afloat, it was a hugely inefficient means of accessing a cost-effective service with a two-thirds success rate. It took over 75,000 referrals in 2012/13 to generate just 13,500 mediations. The chances of a referral leading to an agreement was 12%!

What’s more, the referral sources one think might have an affinity – or at least an understanding of mediation – do not refer in numbers. The following shows the number of national referrals from non-lawyer sources to publicly funded mediation services in 2012/2013:

Referral from court 615
Referral from CAB 283
Referral from other advice agency 201
Referral from Relate or other relationship counseling 22
Referral from GP/NHS 29

It is also worth stressing the funding code referral never met the needs of a huge number of separating families: those on average incomes that didn’t qualify for legal aid and couldn’t afford lawyer-led negotiations or collaborative law.

It might be hard for experienced mediators to swallow but in the absence of unprecedented cultural change, their fate is firmly in the hands of the various gatekeepers to family law services whose behaviour is itself governed by incentives.

I refer here not just to lawyers. Applicants are increasingly seeking out non-lawyer gatekeepers for free advice and information. So what are Mumsnet, Netmums, The Parent Connection and a plethora of personal finance portals saying about family breakdown? Have a look. Are you reading that paying a mediator (and a lawyer for some fixed fee legal advice) is by far the most cost-effective option for separating families who cannot afford to pay the same lawyer £200 per hour to lead open-ended negotiations? Perhaps targeting sought out advisory services and portals might be a better place to start for getting the right message across.

And that message has its roots in the better packaging and selling of family mediation if – after too many false dawns – its practitioners genuinely want to see more people than ever benefit from their skills.

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