Has mediation turned the corner?

Family Law|September 15th 2014

On Friday last week National Family Mediation (‘NFM’), the largest provider of family mediation in England and Wales, reported a significant rise in the take-up of its services in the first six months of 2014. The report was based upon data covering NFM’s affiliated services and mediators from the 1st of January to the 30th of June 2014.

Mediation is, of course, the government’s big answer to its abolition of legal aid for most private law family matters in April 2013. Instead of going to court, couples should resolve their disputes through mediation. Or at least that is the idea.

Unfortunately, the government’s idea suffered a disastrous beginning, with the number of publicly-funded meditations falling through the floor.

The report from NFM will therefore no doubt be viewed as manna from heaven in government circles. But has mediation really turned the corner?

As far as I can see, NFM has not released its data, only saying that “in a number of our service areas increases of 30 to 40 per cent in numbers of people attending mediation compared with the same period in 2013 are common”. They don’t say in what number of their service areas there was an increase, or what has happened in their other service areas, so it is impossible to draw any serious conclusions from the report.

Further, the figures in 2013 were, I believe, very low, so the increases may be very small – 30 to 40 per cent may sound impressive, but 30 to 40 per cent of a small figure is not a lot.

We are also not told how many of the new people attending mediation are doing so with the assistance of legal aid. They are, of course the victims of the abolition of legal aid.

Leaving those points aside, even if we accept that there has been an increase in mediation take-up, albeit a modest one, we surely still have a long way to go, just to reach pre-April 2013 levels. The Chief Executive of NFM Jane Robey admits that “family mediation is not yet out of the woods”. That seems to me to be putting it lightly – the increase needs to be sustained and its rate needs to improve if more mediation providers are not to go out of business.

As for the government’s utopia of 100% mediation take-up, we may be a little closer, but that will forever remain a fantasy.

If all of this sounds like I am against mediation, that is not the case. On the contrary, I regularly recommended it to my clients when I was practising. Mediation is a useful tool that can be used to settle disputes by agreement, alongside direct negotiation, negotiation through lawyers and other forms of alternate dispute resolution, such as collaborative law. However, what I object to is the government promoting it as if it were a panacea, that can completely replace legal aid. Mediation is simply not suitable for all cases, and there will always be cases that are incapable of resolution by agreement, no matter how talented the mediator. As I said here in this previous post, mediation will never come close to replacing legal aid.

What mediation can do however, as I also mentioned in that post, is go some way towards replacing all those cases that were previously settled by lawyers with the assistance of legal aid. Litigants in person struggle to settle cases by agreement, but mediation can bring them together in the same way that lawyers used to. The period after the abolition of legal aid was a disaster for less well off litigants – not only were they denied access to lawyers, but few were pointed in the direction of mediation.

The report from NFM is, therefore, a hopeful sign, but it is far from conclusive evidence that the corner has been turned.

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