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Legally-aided mediation is vital in diverting disputing families from court

National Family Mediation has responded to The House of Commons Justice Select Committee’s inquiry into ‘The Future of Legal Aid.’

The inquiry aims to look ahead to the future of legal aid, especially in view of the significant impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and to identify the major challenges facing clients and providers and how they might be tackled.

Submission by National Family Mediation to ‘The Future of Legal Aid’ Inquiry

National Family Mediation provides legally-aided dispute resolution services to families in all communities across England and Wales.

Legally-aided mediation remains vital in diverting disputing families from court

As a Legal Aid provider, we frequently work with the people living in poverty. The financial status of families must not be allowed to impede their access to justice. Good quality support has always been paid for by Legal Aid, and it is vital this continues.

It is well-known that the logjam in family courts, created by soaring levels of litigants-in-person, has been exacerbated by the impact of Covid-19.

It is also known that diverting disputing families away from courts, to family mediation instead, is a central plank of government policy. Yet this plank of policy receives hardly any investment, and so it seems destined to fail.

Fees

Legally aided mediation is delivered on fixed fees and is never paid on hourly rates. And therefore, the legal aid fund for mediation is never exposed to runaway legal costs as in other areas of legal aid provision.

Fees paid to providers of legally aided mediation have not changed since 2004. According to ONS figures, 2020 prices are 54.55% higher than in 2004, meaning that a pound in 2020 can buy less than two thirds of what it could buy in 2004.

It is high time that these fees were reviewed and upgraded. How can Ministers seriously expect providers to continue to work with incomes calculated with such-outdated figures? In what other areas of the UK economy do Ministers expect people to accept incomes based on figures from 16 years ago?

The Willingness Test

Moreover, there have been further cuts around the edges of legal aid funding for mediation: most significantly the ‘Willingness Test’. Provision of funding for this previously acknowledged the value of mediation services investing time and effort into engaging ‘Client 2’ in mediation.

Accountability and value for taxpayers’ money

We of course understand that taxpayers’ money must be protected and accounted for. However, given the costs to the Treasury of running family courts, and given the successes mediation is proven to bring, there are huge gains for the taxpayer from making legally aided mediation viable.

The annual cost of family breakdown to the taxpayer was, as far back as 2016, calculated at £48 billion (The Relationships Foundation). There appears to be a lack of awareness that modest-but-shrewdly applied investment into the drivers of family mediation, would reap significant savings for the public purse. This includes legal aid provision.

60 per cent drop in contracted legal aid mediation providers

At the time of LASPO family mediation was largely dependent on referrals from solicitors who were contracted to provide legal services with the Legal Aid Agency (LAA). Overnight the family mediation community saw a 68% drop in referrals and consequently many providers went into administration. These numbers six years later have still not recovered. Solicitors do not refer cases to mediation when they stand to gain huge private fees at the client’s expense.

As a consequence of the collapse of referrals caused by LASPO and the unreasonably low levels of legal aid fees for mediation, the number of contracted legal aid mediation providers has fallen by 60%. We ask Committee members to consider the relative importance of supporting non-profit mediation providers (NFM and its affiliate members) if legally-aided mediation is to have any sustainable future.

Helping people find their own feet – and their own solutions

To be clear, we do not support the resurrection of free early legal advice. The problems people encounter when they separate require expert input, but this is not necessarily ‘legal’ input. The emphasis needs to be on helping people find their own solutions. Mediation can help with this, because our family dispute resolution specialists are the experts in reducing conflict in divorce and separation. A more innovative approach to solving problems of disputing families is required, and this includes removing obstacles to accessing justice – improving the legal aid offer to mediators must be a key part of this.

Legal Aid Agency

We wish to comment on the speed with which the LAA makes any kind of changes. Cuts are rapid, but innovations are interminably slow, and mediation always appears to drop off the list. For example, a review of LASPO provided a series of recommendations, none of which have been enacted. We appreciate Covid-19 has impacted policy change across the board, but we believe LAA inertia existed long before the pandemic.

We also make an observation about the degree of legal jargon used by the LAA, because this provides a tough barrier for people trying to access justice. Archaic language used in explanations and application forms is an obstacle for anyone, yet it seems much more difficult for families living in poverty and simply trying to secure legal aid. Clients tell us it feels like a deliberate smokescreen in processes and language is being placed in their way.