Opinion: Compulsory mediation won’t bridge the legal aid gap

Family lawyers could be forgiven for ­saying they have no time for their day jobs at the moment.

Joanne Edwards
Joanne Edwards

The past few months have seen many developments. First there was a green paper on legal aid that threatens to deny access to justice to vulnerable people, deprive many of their livelihood, create more litigants-in-person and push an already overburdened family court system to breaking point. Then there have been ­consultations on the status of prenups, a unified court service and child ­maintenance. New Family Procedure Rules, which come into effect on 6 April, were drawn up and an interim report on an overarching Family Justice Review is expected later this month.

Amid all of this, the Ministry of ­Justice announced on 23 February that, with effect from 6 April, any divorcing or ­separating couples looking to issue ­financial or children applications will first be required to attend mediation ­information and assessment meetings.

Proceedings in the family courts rarely lead to one party feeling they have won, and nor should they, so any initiative that encourages parties to reach out-of-court negotiated settlements is laudable.

However, to assume that this will ­lessen significantly the burden on the ­family courts that the removal of legal aid will bring about is overly simplistic. ­Family lawyers already tell their clients about all alternatives to court as a matter of course. Those who do not settle because there is a complex or novel element require a judge’s input. In money cases there is little ­incentive to settle due to a starting point of no order as to costs. Compulsory ­assessment will not change that.

It is not clear that there will be any sanctions associated with compulsory assessment meetings. What if (a) one party refuses assessment, (b) both go to ­assessment but one party then refuses to mediate despite being deemed fit, or (c) they attend mediation but do not settle?

In the first two situations they should arguably be penalised on costs. However, one cannot go behind the veil of privilege associated with mediation to gauge the reasonableness of the parties’ negotiating positions.

There are capacity issues arising out of the limited notice of the change. A client will be exempted from assessment if they are not able to get an appointment with a mediator within 15 miles of their home within 15 working days. There are large swathes of the country where this will be a problem and various organisations are hurrying to lay on extra foundation ­training and write assessment meeting training material.

There is also concern about lawyers ­trying to find a way around the new rules by ­shoehorning clients into one of the exemption categories. An example is the reconciliation certificate, which requires lawyers to certify that they have discussed ­reconciliation services, but which in ­reality has become a box-ticking exercise. This was a driver behind establishing a referral network in the hope of a good ­conversion rate to mediation.

Some have questioned the timing of the assessment. Many are in emotional ­turmoil after receiving a divorce petition and do not digest advice about process options. However, the longer one waits to go to mediation, the more entrenched ­parties become, and cases are most likely to be converted before the parties have crossed the threshold of the court.

Overall the development is welcome, but mediation is not a panacea for those deprived of legal aid. There is a finite ­supply of mediators to service a ­seemingly infinite volume of work, and clients should consider all alternatives to court, not just mediation. And underpinning it all, we need properly functioning family courts to deal with difficult cases that require ­judicial determination.