Mediators are warning that the introduction of conditional fees into matrimonial cases will drive couples away from mediation and into court, despite government protests to the contrary.
David Hodson, vice-chairman of the UK College of Mediators and Solicitors Family Law Association and national committee member, says that the law change will discourage some cases from coming to mediation – in direct contravention of government policy and the spirit of the Family Law Act – because lawyers will have a vested interest in meeting contracted goals.
“Solicitors are more anxious about the outcome because of their inevitable interest in it,” he says.
“They will be concerned that the outcome of the case may not suit their contract with the client, because the outcome of the mediation may be a settlement which doesn't make them a 'winner'.”
The Lord Chancellor's Department says that the move will encourage mediation and widen access to legal advice for those ineligible for legal aid.
But Hodson says lawyers will be eager to keep matrimonial cases in court, where they can influence the outcome, rather than handing the case, and the issue of their payment, over to a mediator. He gives the example of a lawyer contracted to “win” £5,000. If a mediator suggests a £4,500 settlement, the lawyer will be under pressure to recommend a client refuse settlement and to avoid mediation next time.