It won’t be difficult for the government to achieve its aim of increasing the numbers of separating families using family mediation to settle disputes, says a leading family charity. But it hinges on Ministers taking hands-on action to get family courts to more effectively use the powers they already hold.
In its submission to the government’s Post-Implementation Review of the 2014 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), National Family Mediation (NFM) says: “We believe that boosting mediation numbers would not be difficult since court powers already exist which would help meet this aim.”
The charity’s CEO, Jane Robey, says: “We know government thinking is completely dominated by Brexit. But no new legislation is needed: just the proper enforcement of existing court powers. And we know the purse-strings are tight, but this type of action would cost nothing.
“Stronger monitoring and a more proactive government approach to enforcement would, we believe, transform the situation and avoid the embarrassment for Ministers of their current policy dying on its feet.”
The submission outlines a range of negative impacts that have been felt by family mediation providers as a result of the LASPO Act, and proposes a number of remedial actions that could help the government improve the take-up of family mediation. Central to these are a series of measures to strengthen the proactive involvement of courts in encouraging separating families to use mediation, including:
- Courts should always properly check the respondent has been approached, rather than allowing a situation where forms have simply been signed to smooth the applicant’s route to court.
- There needs to be a court focus on promoting and supporting mediation and ensuring that all applicants and respondents to court have at the very least attended a MIAM before they have an appointment with the court.
- The charity’s experience is that magistrates, judges, and court officials are bypassing the necessary process of getting the C100 and Form A paperwork signed by a mediator at a MIAM
- There is no evidence that courts have altered their practice and embraced the revised procedure rules or child arrangements programme that would prove pivotal in transforming the culture of litigation in divorce in this country.
Key to the charity’s submission is its belief that an increase in the take-up of family mediation can help achieve three of the four objectives the then-coalition government had when establishing LASPO:
- To discourage unnecessary and adversarial litigation at public expense
- To make significant savings to the cost of the scheme; and
- To deliver better overall value for money for the taxpayer.
NFM’s submission follows consultation with its members and affiliates, and also includes a number of suggestions for government action which WOULD require legislative or funded measures, including:
- Provide some financial incentive for solicitors to refer to mediation – at present the main incentive they have is to find evidence of domestic violence to fund an application to court.
- Review and increase Legal Aid rates for mediation providers, in order to avoid the supply of mediators drying up completely.
- Introduce a system to register mediated agreements with the court so that if they don’t work and clients want to go to court next rather than review in mediation the courts have a non-adversarial starting point.
- Reinstate some form of funding to ascertain the willingness of the respondent. Fund MIAMS for all parties, as skilled triage which will save money further down the line in contested proceedings.
- Provide Separated Parents Information Programme (SPIP) for all applicants in children’s matters including additional components about the range of help available before expensive court proceedings commence.
- A national information campaign regarding different pathways available following family breakdown – along the lines of the MOJ’s ‘Family Mediation First’ campaign.
Regarding the impact of LASPO, the submission says: “Amongst LASPO’s effects was an exponential rise in ‘litigants in person’, leading to severe delays and blockages in courts, combined with legally aided solicitor referrals to mediators drying up. Yet it was over a year before legislative efforts to increase family mediation take-up were implemented. This gap had a devastating impact upon voluntary sector mediation providers, resulting in the closure of a number of service providers due to declining numbers of referrals.
“Evidence shows that lawyers are treating the current situation as they did pre-LASPO: Families are spending their money on solicitors, then being sent by those solicitors to a MIAM simply in order to tick the box that ‘frees’ them of any obligation to make settlements through full family mediation – which would save the families money, time and stress, whilst delivering better outcomes for their family. They then head back to the solicitor to spend still more money. Pre-LASPO, solicitors had legal aid for representation, they referred people to mediation to box tick then back again to spend more money. In effect, nothing has changed.
“One of the objectives of LASPO was to cut the cost of legal services to the public purse. In private family law matters it is difficult to argue that the taxpayer should pay for someone else’s legal advice on divorce. Great strides were made to provide alternative services that would help families experiencing family breakdown keep control of their destiny after separation by using mediation. However the culture of divorce in England and Wales remains focused on legal solutions that are fundamentally adversarial and not conducive to encouraging personal problem solving behaviours. As long as this remains the case the taxpayer will forever foot the bill for relationship breakdown.
“NFM remains very concerned about future access of separating families to non-confrontational settlements as well as, of course, the future of our profession.”