Make them mediate! Is there a case for compulsion?

So the results are in. Far from triggering a boom in family mediation, the first six months of life after LASPO have seen publicly funded family mediation massively shrink and litigants in person swell. Three cheers for the Ministry of Justice (MoJ)!

Between April and September 2013, the number of couples attending mediation information and assessment meetings (MIAMs) fell by 51% compared to the same period in 2012. The data shows individual monthly falls of 70% and over in Bristol, Cardiff and Manchester. Likewise, the number of family mediations getting underway between April and September 2013 fell by exactly one third year-on-year.

Impacted family mediation services – most of them not attached to law firms – are hunkering down and waiting patiently for spring 2014 when the law is likely to change requiring an applicant to attend a MIAM before being allowed to proceed to court (see All change for children law).

Do referrals lead to mediation?
But is compulsion really going to restore mediation levels, let alone increase them? In my last blog, I noted that it required 75,000 compulsory referrals to publicly funded mediation in 2012/13 to generate 13,500 mediation starts. If we dig a little deeper into the data, we’ll see only 12% of those 75,000 referrals actually led to an agreement. This is compulsion in action.

Now, all those failed MIAMs and mediations are not without value. After all, encouraging separating parents to communicate with each other is an outright public good irrespective of whether an agreement is reached.

That said the poor relationship between referral and mediation start cannot be overlooked. A case in point is a recent poll of Resolution members about compliance with the pre-application protocol. On the subject of MIAMs, half of respondents said that they were never or rarely successful in referring their client to a MIAM. Assuming the sample size was statistically significant, that’s a pretty large group of family lawyers saying they can barely get their client to meet a mediator as a matter of compliance.

This should not surprise though. The need to attend a MIAM only came about because presumably a prior option to resolve matters failed and the need to issue proceedings arose. But can we honestly expect family mediators to open the eyes of both the applicant and the respondent to a voluntary approach on the eve of court that requires them to sit down and talk? I wonder if the planned change in law is in danger of reducing family mediators to form FM1 dispensers?

Another way
Compulsion arguably has its place but it clearly doesn’t answer the central question of how to make informed dialogue a more compelling option for separating families at the outset of dispute resolution. Answering this question surely has its roots in preserving voluntarism and harnessing self-interest much earlier in the process.

Such thinking will be essential for family lawyers trying to grow the market for their services at the local level. Around 300,000 UK families separate each year and a huge swathe of them will be modest to average income households. That means they cannot afford to buy a full service from a high street family lawyer since the incumbent options are invariably too expensive.

While the cheapest solicitor-led negotiation can cost £2,000 to £2,500 plus VAT, given the presence of conflict it is more likely to rise to between £5,000 and £10,000. Collaborative law – an alternative option – also doesn’t come cheap with entry-level fees of £5,000. It is also rarely advertised on fixed fee terms.

Meanwhile, the burgeoning number of fixed fees services now being offered do not constitute a full service since they rarely contain provision for lawyer-to-lawyer negotiations. In the main, such packages are fixed fee concurrent modules for completing one of the following: a petition, Form E or a consent order.

For a client with less than £5,000 to spend on professional fees, this does not meet their need for a high street lawyer to actively resolve their dispute. This is a big problem for any lawyer with the wherewithal to try and make themselves more accessible to more clients.

And it’s here that family mediation could have a role to play. Because something magic happens when some fixed fee advice is combined with mediation. The total cost to the client is effectively capped at below £5,000 since the approach will succeed or fail before fees can escalate. And while the relationship between referral and mediation start could be better, the relationship between mediation start and reaching agreement is strong. In 2012/13, of all those beginning mediation, over two-thirds (67%) went on to reach agreement (source: MoJ).

The bottom line is that family mediation as a standalone service doesn’t sell: look again at the data above. But offered as part of a fully integrated service by a high street lawyer earning a meaningful fixed fee and lawyer-supported mediation becomes an affordable option for a full service where previously there just wasn’t one available.

So while it is true lawyers have always been important to mediators as a source of work, the clear need to grow the family law services market could finally make this a two-way street.

This blog was originally published by Lexis Nexis.

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