A closer look at the mediation statistics

Family Law|April 6th 2016

Last week the Ministry of Justice (MoJ) and the Legal Aid Agency (LAA) published their latest quarterly statistics on activity in the legal aid system for England and Wales, for the period October to December 2015. The headline, as far as family law was concerned, was that the number of mediation information and assessment meetings (MIAMs) has fallen to a new low.

That is a pretty damning fact as far as the success of mediation as a method of resolving family disputes is concerned. However, there is one major proviso: the statistics of course only relate to legally-aided mediation. I understand that privately funded MIAMs are busy, although I have not seen any recent statistics for that.

Before I go any further, I should just give a little background to the statistics, for the benefit of those who don’t know. The government abolished legal aid for most private law family matters, in April 2013. The government’s big idea to plug the hole left by the abolition was to promote and encourage mediation as a way of resolving family disputes, thereby doing away with the need for the parties to embark upon contested court proceedings. Legal aid was therefore retained for mediation and in April 2014 it became compulsory for most people who wished to take a family case to court to first attend a MIAM. The purpose of the MIAM, as its name suggests, is to provide information regarding mediation, and to assess whether the case is suitable for mediation. The parties can then decide whether or not they wish to try mediation.

Let’s have a look at that headline again. It was actually put in two ways: that the number of MIAMS had reached a new low and that it had halved compared to the level it was prior to the abolition of legal aid. OK, so what are the figures? Well, in the last quarter prior to the abolition of legal aid (January to March 2013) there were 9,267 MIAMs, and in the quarter October to December 2015 there were only 2,895, which by my maths is actually less than a third. However, what the MoJ and LAA seem to have done is to compare the latest figure to the figure for the quarter October to December 2012 (6,684), presumably on the basis that there was an upsurge of legal aid applications just prior to the abolition as people tried to get legal aid while they still could, and therefore the earlier figure was a more reliable indicator of the pre-abolition level. Still, the drop is huge, and by my calculation significantly more than half.

Looking at it the other way, the quarterly figures certainly have declined, although not entirely steadily, and they are at not quite at their lowest level yet (that was the quarter October to December 2013, when the figure was 2,861). To allow for fluctuations, I have averaged the quarterly figures since legal aid was abolished, for the year from April 2013 to March 2014, the year April 2014 to March 2015 and the three quarters from April 2015 to December 2015. The quarterly averages for those periods was 3,348, 3,772 and 3,320. Taking into account the fact that there would have been a drop following the pre-abolition surge, that probably does represent a general decline.

So the latest quarterly figure is pretty well the lowest yet, although I do note that the figure for the last quarter in each calendar year has always been the lowest of the year, perhaps reflecting the effect of Xmas – maybe people are putting things off until Xmas is over.

Whatever, the figures are hardly encouraging, and are certainly no endorsement of the government’s flagship policy to replace legal aid with mediation.

What of the (legal aid) cases that actually go to mediation? Well, the number of mediation starts has also dropped since the abolition of legal aid, from an average of 3,402 per quarter in 2012/13 to an average of 2,255 for the last three quarters (although this may be a little low, having regard to the ‘Xmas effect’, referred to above). By my maths, that is a drop to almost exactly two-thirds of the pre-abolition level. It should also be noted that the figures have actually picked up a little from their lowest level at the beginning of 2014.

Lastly, how many of those mediations resulted in successful outcomes, where the parties were able to reach agreement? Again, the figures have dropped since abolition, and are now running at about 1,300 per quarter, as against about 2,300 per quarter prior to abolition.

All in all, the figures must make pretty depressing reading for the government. Mediation has not replaced legal aid – in fact, far from it (a grimly amusing reason for this is that fewer people are going to mediation because less of them have lawyers to advise them to do so, but I’ll leave that point to one side for now). Quite simply, instead of settling their family disputes through mediation, many of those people who would previously have been eligible for legal aid are now finding themselves having to navigate their way through the courts without the guidance of a lawyer.

In short, the government’s policy has failed.

The legal aid statistics bulletin can be found here.

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