Mediation: Uptake and funding issues

Sally Clark Blog

The latest figures published by the Ministry of Justice reveal that Mediation matter starts in the last quarter of 2017 (October to December) were down by 15 % on the same quarter in 2016. MIAMS figures (Mediation Information and Assessment meetings) were down year on year by 12% and both figures stand at the lowest quarterly rates since the introduction of LASPO.  The same legal aid reported figures show an increase of 3% in private family law applications issued supported by evidence of domestic violence.

It is disappointing that mediation levels both in terms of attendance at assessment appointments (MIAMS) and then actual number of matters starts i.e commencement of substantive mediations are continuing to fall. It is however perhaps not that surprising  and there are number of factors which could point to this:-

  1. Legal aid rates for mediation practitioners have not increased for a number of years and there is far less incentive for mediation firms/mediators to continue to carry out publicly funded work. It is very difficult to make the work pay and be a commercially viable option. As such significant numbers of mediators and associated firms are choosing not to renew their contracts in the latest round of the tendering process. This therefore does, and I imagine will, increasingly lead to a shortage of local providers. I ran a mediation contract for over 6 years and made the difficult decision last year not to re- apply in the latest tender. My decision in part was based on the pay rates and in part on the ever increasing bureaucracy of the audit process.

  2. Mediation sits un easy as an option with some family practitioners and for a variety of reasons, mainly financial with pressure being on targets,  some family solicitors and firms do everything possible to avoid the MIAMS stage or advise their client that mediation isn’t suitable but it is a box which needs to be ticked before litigation can commence.

  3. I suspect that there may be variations in Gatekeeping in the Family Courts with some areas/regions being more proactive on compliance regarding the C100 and Form A Court forms. Under the Child Arrangements programme for private children applications Mediation is to be kept in mind at every stage of Court proceedings. There may be a training issue with Court staff and then Magistrates and Judges in the Family Courts. Mediation is one of the key performance indicators of local family justice boards and as mediators we have the opportunity to be pro-active in training and getting involved in initiatives. The viability of initiatives however generally comes back to funding with mediation practitioners giving up their time when otherwise they/we could be working and need to earn money. For those of us who run their own business and likewise with paid fee earners in other organisations our eyes have to be on generating income for our services, in reality as well as promoting awareness, and everything is a balancing act.

  4. Legal aid funding criteria is low. For many low to middle income families parties simply do not qualify for mediation. This then creates a difficulty in affordability for paying for mediation services if there is little spare income around

  5. In financial mediations there is the “other forms of dispute resolution “ box which can be ticked to “get around” the requirement to attend a MIAMS. Similarly with the widening of the Domestic Violence exemption, which in some cases in entirely justified and in others the reality is that perhaps it is less so, there again may be a more direct route to litigation.

Why is mediation important:-

Mediation is important on a number of levels:-

  • Financially – the costs of parties mediating are significantly less then parties engaging in Court proceedings;
  • Time- mediated agreements can take weeks to obtain whereas Court proceedings  do take months and in some cases years to resolve
  • Children – with mediation the focus is not only upon arrangements but also on communication . A Court Order does not assist with communication and can and does often lead to further problems. If the order is not fully defined it can lead to more problems than it solves and if everything is precisely defined for every week of the year, the reality is that as children grow and circumstances changes the Court order over time is no longer fit for purpose.
  • Choice and control – with mediation, parties retain control over the decisions which will impact upon their future and the future of their children. In Court proceedings all control is handed over to the Judge/Magistrates determining the issues at hand.

Summary

Whilst there is no “quick fix” for mediation service, family mediation is a key component of the family justice system and with proper awareness , resources and explanation as to how the process works , mediation can assist many separating families on their path to a hopefully brighter future.  Resources are not something, certainly as to public funding, that practitioners can control however we can all do our bit to promote awareness and ensure that as solicitors and mediators we are explaining all dispute resolution options to clients so that they then have the choice as to which process to use based upon their own unique situation.

For more information on family mediation and how it can be used to assist in circumstances of family breakdown then contact me at Sally@clarkfamilylaw.co.uk  or 01423 637272.