LEGAL SERVICES COMMISSION: LEGAL AID AND MEDIATION FOR PEOPLE INVOLVED IN FAMILY BREAKDOWN
Publication of 51st Report of Session 2006-07
Edward Leigh MP, Chairman of the Committee of Public Accounts, today said:
“In one third of the family breakdown cases surveyed by the NAO solicitors did not advise their clients that professional mediation was an option. But mediation is often a swifter and less acrimonious path; and it is cheaper. It is important to avoid court room confrontations as far as possible - even if some avaricious lawyers are more than happy to cash in by keeping quiet about the mediation alternative.
“It will still be a voluntary matter whether to go to mediation. And clients will in most cases need a degree of professional legal advice. But the Legal Services Commission must set a target for the number of cases it expects to be resolved by mediation rather than going to court - and make sure that solicitors take that target seriously.
“The Commission has proposed far-reaching changes to legal aid for family breakdown. These include the requirement that clients seeking legal aid be screened for their suitability for mediation; and a new fixed fee system to give solicitors more incentive to refer their clients to mediation. These ideas are welcome but they will not get far unless the Commission’s management information systems are improved radically.”
Mr Leigh was speaking as the Committee published its 51st Report of this Session which, on the basis of evidence from the Legal Services Commission, examined the shortcomings of the current system for referring clients to mediation, and the actions the Commission has in train to increase referrals to and take-up of mediation services, to improve the quality of mediation offered, and to strengthen the Commission’s oversight of solicitors and mediation providers.
People undergoing divorce or separation will often need professional legal advice. For people on low incomes, legal aid is available to meet the cost of such advice, and it can also pay for professional help with alternative ways of resolving disputes, such as mediation. The Legal Services Commission (the Commission), a non-departmental public body sponsored by the Ministry of Justice, is responsible for administering legal aid in England and Wales.
Family disputes that are resolved through mediation can be cheaper, quicker and, according to academic research, less acrimonious than those that are settled through the courts. Full or partial agreement was reached in 59% of mediated cases examined by the National Audit Office. Yet of the 149,000 family disputes supported by legal aid which were completed in the period October 2004 to March 2006, only in 29,000 cases did the parties attempt mediation. The majority (120,000) were completed through court proceedings or bilateral negotiations through solicitors. The National Audit Office survey of recipients of legal aid found that 33% said they had not even discussed mediation as an option with their solicitor or adviser and, of those, 42% said that they would have been willing to use it.
A major shortcoming in the Commission’s effort to increase the use of mediation has been the absence of a financial incentive for solicitors and other advisers to promote mediation to clients who might otherwise choose a court-based route. The Commission has proposed a number of changes to address this issue including a fixed legal aid fee rate to replace the current hourly fee rate and a requirement for clients to consult a mediator before being eligible for further legal aid funding. The Commission will, nevertheless, have to work with solicitors and other advisers to encourage them to promote mediation to their clients. The Commission also needs to improve its management information systems, to monitor more closely solicitors’ rates of referral to mediation and client satisfaction with mediation services provided. The Commission should be prepared to intervene to improve access to mediation and raise standards of service as necessary and highlight the benefits of mediation in its own publications and guidance for members of the public.
Some 78% of the population live within 5 miles of a professional mediator, but in some parts of the country travelling time to reach a mediator may be much longer and hinder take-up of such services. The Commission planned to pilot a telephone service but recognised that clients might prefer face-to-face consultation.
In any family breakdown children are usually the most vulnerable party and warrant special consideration. The Commission has encouraged mediators, clients, solicitors and advisers to take account of children’s wishes and has piloted consultation with children when plans are being made to secure their future wellbeing.