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On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force and legal aid was withdrawn for most family matters. Legal aid is now only available for advice and action in limited circumstances that all generally relate to cases where there is a risk of harm. This has led to many firms that did mostly legal aid work being extremely hard hit. They will now turn their hands to more private work, and firms offering exclusively private work may wonder whether they will be hard hit by other firms doing more private work - possibly on a cheaper basis. It is certainly a worrying and changing time for family lawyers.
When is legal aid available for mediation?
What doesn't seem to be making the headlines is that legal aid remains available for mediation. This is often a small sentence thrown away in articles about the sweeping changes to the legal aid system, yet it is hugely important. The means test for mediation makes it available for people on a relatively decent income (a gross of £2,657 per month or £31,884 per annum, for anyone with four children or less). You can also have up to £8,000 in savings or £100,000 of equity and still qualify. It is not just for people on benefits. Given this and the fact that legal aid is not available to obtain advice from solicitors in most cases, you would be forgiven for expecting a sudden and dramatic upsurge in the amount of couples going to mediation.
Why are mediation referrals decreasing?
Yet the news stories of last week were all full of statistics about the dramatic downturn in the number of mediation referrals. According to figures quoted in the Law Society Gazette referrals fell by 26% in the period April to June of this year (compared with referrals in the same period in 2012). It said from April to June last year there were 3,564 referrals which reduced to 2,623 this year. Referral decreases have varied around the country and the worst hit areas seem to be Brighton (41% decrease), Cambridge (32%), Leeds (30%), and London (27%). Worryingly the number of people attending a MIAM (Mediation Information and Assessment Meeting) fell averagely, across the country, by 47%. There are many other statistics quoting figures along the same lines. This is surprising news for the government which has expressed a wish to see separating couples take responsibility for their own affairs, rather than burdening an already groaning court system. And it is worrying news for mediation practices and those that earn their living from providing much needed mediation services. The reason for this does not appear to due to one issue but the general feeling among the family practitioners I spoke to appears to be that it is a combination of the following:
Clearly when attending a MIAM before commencing court proceedings becomes properly compulsory the number of people attending such a meeting may well increase. The concerning thing is that this is not likely to be the case until next year and many practices offering only mediation may not survive until that point. This would seem a waste given there are mediators ready, willing and able to help people now.
What can be done?
Given the benefits of mediation and the emphasis the government has placed on it, in making it now the only source of publicly funded help for most people, we have to look at what will prompt an increase in the number of people seeking to use mediation services now. Clearly an emphasis needs to be placed on making the general public aware of what mediation is (not what it isn't) and how it may benefit couples who are separating. This is a job that many may have thought the government would do. In the absence of anyone else doing it, it surely falls to those who benefit the most to carry the burden for doing this. For many on the front line of providing services for those divorcing or separating, it is hard to think further than just getting clients and fees in. There does however need to be some long term thinking and to do this we must all offer the very best service we can and extol the benefits of the wide number of tools now available to family law practitioners. If clients are to get the best service (which is surely a unifying aim of lawyers and mediators alike) then lawyers and mediators need to work closely together to ensure that they are offering the best service to the client. Given that mediation works best when coupled with legal advice there would seem to room in the market for all of us. Maybe we just need to all remember that and the benefits we can offer and stop living in fear?
Louisa Whitney is a mediator at LKW Family Mediation and a freelance legal writer and blogger
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