The Changing Scope for Mediation 29/04/16

In cases of separation, an idealist would have both parties reach amicable mutual agreement when it comes to assets and child arrangements. Though this often cannot be achieved, it remains the primary driver behind the prominence of the form of Alternative Dispute Resolution (ADR), known as Mediation, in private family law. In mediation, two contending parties meet with an independent impartial third party and attempt to reach settlement through dialogue in good faith. The benefits of such resolution are clear as both parties stand to avoid time-consuming financial and emotional detriment.

The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 aimed to stimulate uptake of ADR by retaining funding aid for mediation while cutting legal aid in various other areas of private Family Law. Despite this, representatives of the Ministry of Justice later admitted that levels of mediation uptake fell by 56%, while the number of litigants in person (parties issuing proceedings without representation) rose as an unintentional side effect. It was suspected that this resulted from less referrals to mediators from legal aid Lawyers, a lack of compulsory Mediation and Information Assessment Meetings (MIAMs) attendance as part of applying for legal aid and a general lack of awareness surrounding the option.

The Ministry of Justice commissioned the Family Mediation Task Force (FMTF) to investigate before producing a slew of recommendations with a view to enhancing party-focus and achieving socially responsible outcomes for families. While not all of these recommendations have since been incorporated, consideration is still being given to those which will best complement the changes brought by the Children and Families Act 2014 – requiring anyone who wishes to issue private law proceedings in the Family Court to attend at least one MIAM. This broad introduction of mandatory mediation addresses accessibility and is a responsible method of ensuring that the welfare of family members is held at the core of the separation process, no matter the avenue adopted to facilitate it.

Recent statistics released by the Ministry of Justice show that, after fluctuating since the sharp post-LASPO drop in 2013, attendance levels of publicly funded MIAMs are stabilising at around half of those seen prior to 2013. Other areas of mediation are similarly stabilising, including mediation starts and agreements at around 60%, following a cumulative recovery.

It seems that while the LASPO Act 2012 might have been considered a disaster for substantive family justice, it has inadvertently spurred on a more broad brush attitude toward integrating mediation into the divorce process. It can be hoped that this will further help those minded toward fair settlement. With Solicitors becoming increasingly mediation-friendly and valuable in drafting creative Consent Orders for mediated settlements, plus recommendations being given that the SRA consider changing regulations to allow for Solicitors to meet with both parties; the scope for amicable settlement looks to be widening.

If you have a family matter you would like to discuss further, please contact us now to speak with someone in our family department: southampton.