Never-ending story: Lawyers vs Mediators (Volume 235)

What do Ministry of Justice (MoJ) figures exposing a spectacular absence of legal advice in support of family mediation have to do with creating a market for resolving contested divorces for less than £5,000?

Nothing. At least on the surface. But the data – secured from the MoJ via a freedom of information request – holds a vital clue as to why legal aid family lawyers should take a second look at family mediation in 2014 before certificate work rushed through before LASPO, starts to dry up.

But the first the data: I asked the MoJ how many claims legal aid family lawyers had submitted to the Legal Aid Agency for “Help with mediation” between April and October 2013 (the first seven months of life after LASPO). The result: a mere 20 claims made nationwide. See my previous blog for the details.

Over the same period, 5399 publicly-funded mediations got underway consisting of 10,798 individuals. So the data tells us that just 20 people accessed “Help with Mediation” out of the thousands entitled to it.

This is shocking but should not surprise. A legal aid lawyer is paid the princely sum of £150 by LAA for “Help with Mediation”, plus another £200 to compile a consent order. They also have to screen each client for eligibility. In essence, the MoJ designed the policy to sever the link between lawyer and mediator despite the fact people need advice to make informed decisions at mediation.

Casting the lawyer aside is also responsible for the number of mediations falling dramatically over the same period (when the MoJ was expecting mediation to boom). Between April and October 2013, year-on year referrals to MIAMs fell by 52%, while the number of mediation starts fell by just over one-third (35%).

Bottom line: not only has the number of mediations plummeted since LASPO but hardly anyone attending publicly funded mediation is accessing legal advice to which they’re also entitled. I wonder what MoJ new broom (and ex-barrister) Simon Hughes MP makes of all this?

Reaction from professionals on the ground is polarised: family mediators demand stronger measures to compel more people to explore mediation while family lawyers think a return to some form of legal aid is the answer.

Respected mediator Mary Banham-Hall made the case for compulsion in an online comment on The Law Society Gazette website. She wrote: “…almost compulsory mediation direction is now happening in civil mediation, as following the Jackson reforms judges are now making mediation directions at case management conferences that apply to both parties. Why not in Family Proceedings?”

Meanwhile, at the other end of the spectrum high profile family lawyer Marilyn Stowe blogged that mediation “didn’t take off 20 years ago, and it hasn’t taken off now, because mediation must be consensual for it to have any prospect of success” and that government would be better advised to spend public money “devising a new form of legal aid, one designed for the contingencies of real life”.

Both viewpoints convey a sense of hopelessness: you either let couples in conflict fight it out at court (using lawyers) or march them both to a mediator for a dose of common sense.

More importantly, it shows that mediators and lawyers seem no closer to the type of collaboration and multi-disciplinary working required to meet the diverse needs of impacted families.

And this is where legal aid lawyers have a huge opportunity to reshape family law services costing less than £5,000. It could also be a lot more lucrative – not to mention affirming – than counting the pennies from selling PAYG advice to litigants in person.

The truth is that most separating couples don’t have the money to seek out the likes of Ms Stowe. Nor do they make a beeline for the likes of Ms Banham-Hall. Simply put, average income private clients cannot afford to pay £5,000 to £10,000 for a lawyer to negotiate an out of court settlement but then neither do they take the cheaper (and effective) option of referring themselves to a family mediator.

But fuse family mediation with some fixed fee legal advice and you suddenly make available a service costing comfortably less than £5,000. This covers everything including: the divorce petition, the legal advice, the court fees, the cost of mediation and the consent order.

And it’s legal aid family lawyers that are particularly well placed to train their high-volume, low-margin case management skills on attracting modest to average income private clients. For such lawyers it’s about more than correcting a market failure; it could hold a clue to their very survival.

A version of this blog was published by Legal Voice.

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