Free mediation for all if one party has legal aid

mediation, arbitration

One session of mediation will be free for everyone involved if one of the parties has legal aid, the government announced today.

Currently, the only person entitled to a free mediation session is the party who has the legal aid. This can deter the other spouse from attending as they will still have to pay for it.

Family Justice Minister Simon Hughes said this new initiative was the next step in the government’s plan to have fewer people go through the court system.

He said that, despite the government’s efforts, “[t]oo many families still end up in court locked in confrontational, damaging and expensive court battles.”

I think he is wrong and misguided. Frankly, this is just another very small sticking plaster on the gaping wound the government has inflicted on the family justice system.

It’s all very well making mediation free if one party has legal aid but, after the cuts, how many cases will that affect? Legal aid has been almost completely gutted. If there has been domestic violence in the marriage, the partner can qualify but it is remarkably difficult to prove.

In addition, how many partners will want to sit through mediation if they have been victimised? The compulsory MIAM (Mediation Information and Assessment Meeting) that divorcing couples face can be waived in cases involving domestic violence. Also, bear in mind that in all the rest, only the proposed applicant must attend. The other party has a choice and if he or she doesn’t turn up, then that’s that.

The announcement also marks yet another attempt by the government to bang the drum of mediation. Mr Hughes said “We know mediation works”, but there is a lot of evidence to the contrary. Mediation saw a 38 per cent drop after the legal aid cuts were introduced, and only half of adults are even aware of it.

It’s an odd coincidence but, only a few days ago, I saw a new client in our Hale office who had patiently sat through several sessions of mediation for both parties to both walk away, even more frustrated and angry with the other than they were before it began. The truth was clear to me as she talked it through, they had mediated too soon, the emotions were too high, and neither of them had a clue what their real position was in law. Both their aspirations needed toning down and the mediator just hadn’t been able to do it.

So let me bang the drum this time, for what I know does work. If the government is truly serious about easing the burden on the family courts, then arbitration is the answer.

This is the best of both worlds. Not only will it steer families away from the increasingly clogged up court system, the decisions made during arbitration are enforceable by law.

The government can try to fix a broken system with tiny, incremental changes that won’t make much of a difference, or they can try a radical new approach. Sadly, I don’t see any significant changes on the horizon.

Photo by Wirawat Lian-udom via Flickr

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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4 comments

Kathryn Evans - August 21, 2014 at 10:54am

Surely most of the people who now qualify for Legal Aid will be victims of some sort of domestic abuse. Are these cases really suitable for mediation?! I would hate to think that people in such a situation, with limited funds, would consider mediation as their only option…

Stitchedup - August 21, 2014 at 2:26pm

“Surely most of the people who now qualify for Legal Aid will be victims of some sort of domestic abuse”

WRONG…. all that is needed is an allegation of domestic abuse and that allegation may be something as flimsy as one party feels intimidated by the other or is in fear of possible domestic abuse/violence.

Flimsy allegations such as these should not scupper offers of mediation neither should dubious non-communication orders issued in the civil courts when there has been no proof of physical domestic violence. Mediation should come under reasonable excuse and should be viewed as a means of pouring oil on troubled waters and could in some circumstances be used as a prerequisite for the removal of indefinite restraining/non-communication orders.

Judy Park - August 23, 2014 at 1:42am

Kathryn, your comment re legal aid is incorrect. Legal Aid for mediation is available, irrespective of domestic abuse.
Clients on Benefits or who have a low income are invited to be assessed for legal aid when attending a MIAM meeting and if they qualify they will get free mediation.
Legal Aid for solicitors and the courts is only available for those clients who have suffered domestic abuse.
I welcome the Ministry of Justice’s offer of a free mediation session for all but I would go further to include arbitration. It will be up to the client to choose a form of dispute resolution to suit their circumstances.

Andrew - August 25, 2014 at 4:28pm

Judy: legal aid for solicitors and the courts is available for those clients who CLAIM that they have suffered domestic abuse.

Not for those against whom the allegation is made.

Which, apart from being an obvious breach of Article 6, means that the claimant who is a genuine victim of d.v. may have to endure cross-examination by the defendant who committed it.

Another spectacular own goal from MoJ!

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