Flogging the dead horse of mediation

I’ve been having a look at the Report of the Family Mediation Task Force, which was discussed here by Marilyn Stowe in this post. I agree with everything that Marilyn said there, and wanted to add a few thoughts of my own.

Just to recap, the ‘Task Force’ was set up to try to rescue the government’s rapidly-sinking plan to replace expensive legal aid with the cheaper alternative of mediation. The government tried to dress-up the plan with praise for mediation as being a ‘better way’ than going to court, but the real aim was, of course, purely to save money. Unfortunately, no one in government was clever enough to foresee the obvious flaw in the plan: that most mediation referrals were done by lawyers, and therefore by removing lawyers from the equation the number of mediations would plummet.

Now, no one in government likes to admit that they were wrong, so instead of doing a u-turn they decided to press ahead regardless. The Task Force was therefore …er… tasked with the …er… task of coming up with a list of great recommendations to get the government’s big idea back on track.

Early in the report we are told that: “There has been agreement for many years that separating parents should be encouraged wherever possible and safe to arrange their affairs without recourse to the courts.” Well, yes. That is precisely why throughout my twenty-five year career as a family lawyer I, like the vast majority of my brethren, endeavoured to resolve every case in which I was instructed without recourse to the courts. Of course, I was not always able to avoid contested court proceedings. However, the proportion of my cases which did have to go to court remained pretty much the same throughout those twenty-five years.

At the beginning of my career mediation was not an option – the only way to resolve matters by agreement was either by the parties agreeing between themselves or, much more likely, by an agreement being reached between lawyers. Later on, mediation became available, but it obviously only served as another method to resolve some disputes that were capable of resolution and would not therefore have gone to court anyway.

And that is the point: mediation won’t replace going to court, at best it will just replace other methods of settling cases that were likely to be settled anyway. No matter how many methods of settling out of court are available, there will always be a residue of cases that are, for whatever reason, incapable of being resolved by agreement. Clearly, we will always need the court to sort out those cases.

The authors of the report state that they believe that ‘out of court dispute resolution’ (i.e. primarily mediation) can achieve a reduction in the number of cases going to court from ten per cent (which is about what it was before legal aid was abolished for most private-law family matters in April 2013) to five per cent. However, their only justification for this (still fairly modest) achievement is the experience of other countries, which may or may not be relevant to the situation in England and Wales. The truth of the matter is that this is no more than a hope. Certainly, my experience of the difficulties of bringing some parties to the negotiating table suggests that no method of out of court dispute resolution is likely to make unreasonable people suddenly behave in a reasonable fashion, so I have serious doubts that the numbers going to court can be reduced significantly.

But any talk of reducing the number of cases that go to court from pre-April 2013 levels is pie in the sky unless mediation can completely replace what was for those who were previously lucky enough to get legal aid the primary method of resolving cases out of court: settling with the assistance of lawyers. I’m sure it could partially replace it, but without the constant guidance of their own lawyers many couples are likely to give up before the settlement process is complete, for example because of unreasonable expectations resulting from lack of personalised advice.

In short, even if the Task Force’s recommendations succeed in increasing take up of mediation that will never come close to replacing legal aid. Nevertheless, like a shopkeeper with only one product on his shelves, the government will continue to try to flog mediation to the public. Unfortunately, however, only a few of the customers will find that it is fit for purpose.