On the same day the Ministry of Justice (MoJ) makes a mediation awareness meeting compulsory for anyone seeking access to the family court, our latest Freedom of Information is making headlines.
We revealed that unrepresented parties are now the majority in family cases dealing with child proceedings. You can read more about the family court data in The Law Society Gazette and the Financial Times (subscription required).
Clearly, the MoJ is hoping that compulsory Mediation Information and Assessment Meetings (MIAMs) will lead to a significant rise in the number of mediations getting underway. The latest figures from December 2013 show that publicly funded mediation starts are down 37% year-on year.
But will compulsory MIAMs for applicants win the day? This blog has examined the case for compulsion before and it remains our contention that while compulsion has its place, it is not a sufficiently strong enough lever to scale up mediation to the point of becoming mainstream.
Meanwhile, referrals to mediation from other sources are also a cause for concern. We invite you to download a PDF of a recent freedom of information request that shows referral sources to publicly funded mediation since April 2013 (the introduction of LASPO).
Between April and December 2013, the MoJ recorded 22,854 cases referred to publicly-funded mediation. You will see that lawyers account for over half of referrals (12,199). But the withdrawal of the funding code referral is seeing a steep decline in referred cases as each month passes.
In April 2013, lawyers referred 2,732 cases to mediators. But by December 2013, this figure had fallen by 75% to just 669 cases. This provides the clearest evidence to date that the MoJ needs to provide a greater financial incentive for legal aid lawyers to support the mediation process.
On a more positive note, just over one-third of recorded cases were classed as the result of clients self-referring. However, the data shows no upward trend in monthly numbers to offset the aforementioned falling number of lawyer referrals. This emphasises the enormous task the MoJ has set itself in promoting standalone mediation to a UK-wide population of separating couples that in crude terms are one-time shoppers making a distressed purchase.
Referrals from non-lawyer sources are so low they border on statistical irrelevance. For example, UK-wide referrals from Citizen Advice Bureaus and other advice agencies account for just 3.5% of all referred cases.
What will the MoJ do next? Your guess is as good as ours. It could sit on its hands and hope that mandatory MIAMs lead to a boom in mediation starts. Or, it could recognise the importance of lawyers – as gatekeeper advisers – in marketing mediation and ensuring mediated agreements are informed.