On April 22nd the Ministry of Justice (MoJ) made mediation awareness compulsory for anyone wanting to issue family court proceedings. The very same day we published evidence of an impending crisis that threatens to engulf the new Single Family Court.
Using MoJ data secured under the Freedom of Information Act, we revealed that unrepresented parties are now the majority in family cases dealing with child proceedings. My legal sources tell me this is unprecedented. Overall, the number of unrepresented parties attending court has swollen by one-third compared to the last full year when legal aid was available for representation at court.
Away from child cases, unrepresented parties are also set to rise for financial remedy (formerly ancillary relief) proceedings as pre-April 2013 publicly funded cases are inevitably discharged. It’s a sobering thought. Given financial proceedings can be technical and complex, how long before national papers report stay-at-home-mums asking despairing judges what “pension splitting” means? And what of the unknown number of divorcing women that don’t surface as litigants in person and run the risk of agreeing something lopsided over the kitchen table?
Clearly, the MoJ wants to avoid such a scenario. It is pinning its hopes on compulsory mediation awareness to divert swathes of would-be Applicants from judges to mediators. Every little helps but making someone consider mediation in the context of them wanting to do something else (namely litigate) is a weak lever at best.
This is a great shame since mediation is extremely efficient once underway. Latest figures from the MoJ point to agreement being reached in over 70% cases. Getting more people to start mediation is therefore the only game in town if the MoJ wants to ease pressure on the new Single Family Court.
But mediation without lawyers is just not cutting it. Since the introduction of LASPO in April 2013, publicly funded mediation starts have fallen by 37% year on year. The withdrawal of the funding code referral has severed the link between publicly funded lawyer and publicly funded mediator. Worse still, they now compete with each other for the same clients.
Between April and December 2013, referrals from lawyers to mediators plummeted by 75%. Meanwhile, referrals to mediators from non-lawyer sources are so low they border on statistical irrelevance: UK-wide referrals from Citizen Advice Bureaus and other advice agencies account for just 3.5% of all referred cases. (See the data for yourself)
So why have referrals from lawyers dropped so steeply? Short answer: self-preservation. In order to survive, legal aid lawyers have embraced the unbundling of family law services. While PAYG or fee for item services would ordinarily be embraced in consumer rights circles, the cornerstone of efficient dispute resolution remains structure and momentum.
But then completing Form E, drafting a consent order, or filling out a divorce petition, provides neither structure nor momentum. This is ring-fenced process and a telling reminder that unbundled services is not a cut-price substitute for lawyer-led negotiations and collaborative law.
One might go so far to argue that unbundled family law services are doing little to dampen the incentive for self-representation given litigants in person can “top-up” with legal advice between hearings.
Taken as a whole, this should give Simon Hughes extreme cause for concern. If the minister is serious about averting a pre-election crisis at the new Single Family Court, he must act to give publicly funded lawyers sufficient incentive to promote and support publicly funded family mediation.
At present, the MoJ pays said lawyers £150 to burn a new matter start for providing “Help with Mediation”. And the number of claims submitted by lawyers across England and Wales for “Help with Mediation”? That would be a grand total of 26 claims between April and November 2013. No, we’re not making this up.
Leaving aside the unanswered question of whether it’s now MoJ policy for separating couples to attend family mediation without taking any legal advice, the lack of partnership between publicly funded lawyers and mediators is striking. The MoJ needs to put this right. It is not about “restoring legal aid by the back door”; it is about re-casting “Help with Mediation” to include a post-MIAM – but pre-mediation – meeting with an advising lawyer who can earn more than 150 quid to ensure decisions being taken at mediation are informed.
This strikes me as a small price to pay to avert the political fallout that will engulf the MoJ as the new Single Family Court grinds to a highly visible and newsworthy halt.