The falling numbers of divorcing couples who are seeking family mediation services had led to Lord McNally calling on members of the family lawyers group Resolution to work more closely with the Ministry of Justice [ MoJ] to increase awareness of mediation through the media and other channels.
Resolution is a national organisation of family law specialists and other professionals, all of whom have committed to work to resolve family problems in a non-confrontational way. Resolution was previously known as the Solicitors Family Law Association and has 6,500 members who follow a standard code of practice. This code sets out their positive style and non-confrontational way of approaching family breakdown, helping the couple involved to consider the needs of everyone involved, especially any children.
The sad failure of family mediation to capture the imagination of couples is probably in a worse state than had been imagined by McNally. Since changes to the Legal Aid system were put in place in April 2013, the number of couples seeking to use mediation services has been in sharp decline. In the first six months since the changes were introduced the numbers were down 51%.
In terms of absolute numbers, in the six months between April and October 2013, only 20 Legal Aid claims for help with mediation services were made. Under the previous system, Legal Aid money was enough to almost cover mediation work, but now people are only entitled to a single payment of between £150 and £350. This has in turn led to a drastic reduction in the involvement of family lawyers.
Many of the referrals to the mediation services in the past have come directly from solicitors, who were the first point of contact for divorcing couples. Now that legal aid is more limited, fewer couples are seeking legal advice for their divorce, and this is in turn leading to fewer people being referred on to mediation.
Many people involved in mediation suspect that the Ministry of Justice may have a hidden agenda to stop lawyers getting involved in sorting out divorce disputes altogether, and it seems the decreasing mediation figures support this theory. The MoJ have also recently announce that they want to make family mediation compulsory for any couple seeking to divorce. Although this may sound quite radical, current guidelines state that couples should be referred to mediation and assessment hearings before beginning court proceedings, and only the person applying for the divorce can be forced to go to the hearing.
Experts working in the field believe that forcing couples to come together with a mediator before commencing court proceedings will not make much of a difference to the numbers of couples in mediation. As the old saying goes, you can lead a horse to water but you cannot force it to drink. In order for mediation to be successful, both partners have to be committed to resolving their difficulties and willing to reach an agreement, so compelling people to attend mediation often works in a negative manner. Mediation is only successful in resolving family issues in a minority of cases; out of the 75,000 mediation referrals made between 2012 and 2013, only 12% ended with a successful negotiation.
Legal Aid is also of critical important to the whole mediation process. This is evident from the same figures, as out of the 75,000 total referrals made, 62,000 came directly from family lawyers who were obliged to refer their clients on to the mediation services.
The entire system is a confused mess, which is borne out by the statement by McNally to the members of Resolution. The MoJ faces a long battle to raise public awareness of mediation services and how they can be used in divorce situation, especially as the Legal Aid cuts begin to bite. In the meantime, both lawyers and clients are left in limbo, unsure of which direction to take
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