Why lawyers and mediators must pull together

News of a £15m underspend on family mediation by the Ministry of Justice will have numerous critics of the Legal Aid, Sentencing and Punishment of Offenders Act mouthing: ‘I told you so.’

 Far from booming, the number of publicly funded mediations has plummeted by 40% since May 2013. But this article is not about family mediation per se. It is about aligning lawyers and mediators to grow the market for family law services and help rein in the growth of litigants in person.

First, a little-known factoid: in 2012/13, over two-thirds of people who began publicly funded mediation went on to reach agreement. This is impressive given that communication is often impaired and trust levels low. Contrary to what some lawyers believe, this is precisely when family mediation should be considered and not glossed over.

Time spent at even a failed mediation may have restored some dialogue, begun disclosure and sharpened the issues ahead of other more expensive options. But then family law services are not built around cost-benefit analysis. The client is ostensibly a one-time shopper making a distressed purchase. If nearly all clients divorced twice, family law services would look very different.

Back in the real world, a great many family lawyers regard mediation as little more than a niche option. Given the huge rise in litigants in person, the first year of LASPO has done nothing to challenge this view.

Data extracted from the MoJ via the Freedom of Information Act shows that since April 2013, unrepresented parties have become the de facto majority of all litigants at Children Act proceedings in England and Wales.

So there you have it: an open-and-shut case for restoring legal aid to lawyers at court. As ever when it comes to the family justice system, the picture is more complex. In the first six months following LASPO, the number of court applications filed for private family law matters increased by 7% year on year. This tells us that the withdrawal of publicly funded lawyers from court did not lead to a massive rush to judgment.

Rather, slightly more adults are applying to the courts but a great deal more are representing themselves once they get there. So are these cases the most intractable and complex? Is court absolutely the right place for these people to be?

Last week, Sir James Munby – the most senior family judge in England and Wales – made headlines when he adjourned a child contact case to ask the justice secretary, Chris Grayling, to explain how the case could proceed without the father – a convicted sex offender – being awarded legal aid. 

But is such complexity and safeguarding indicative of private family law cases? In this respect, the sheer volume of court applications is noteworthy.

In 2012/13, there were over 49,000 applications for private family law Children Act proceedings and almost 46,000 applications for Ancillary Relief (now Financial Remedy). In 2012, there were 118,140 divorces in England and Wales. While no statistical relationship can be instantly drawn between the three totals, these are large numbers indeed. Are we really saying nothing can be done to reduce this number of litigants from sniffing the air of the courtroom?

As we know, the MoJ believes mediation is the answer. But compelling applicants to now consider mediation in the context of them seeking judicial redress is hardly the stuff of empowerment and voluntarism that makes mediation successful. It will not lead to a sustained hike in mediation.

The MoJ knows this. It also knows that in general terms lawyers and mediators are not commercially aligned. They never have been. And until such alignment is achieved, family mediation will never go to scale.

Before LASPO, family lawyers had to refer publicly funded clients to mediators in order to access the next tranche of legal aid. As such, tens of thousands of referrals to mediation did not result in full mediation. It meant over half (54%) of MoJ spend on family mediation in 2012/13 went on MIAMs alone.

Fast forward to April 2013 - when family lawyers were cut from the fray - and matters remain unchanged: just under half (48%) of total spend between April and December 2013 continued to be spent on just mediation information and assessment meetings.

Isn’t it obvious? Converting couples to mediation is extremely difficult when the go to professional – the high street family lawyer - is non-aligned.

 But for mediation to be perceived as more compelling by both parties this has to change. Lawyers – as gatekeepers to family law services – need to be an integral part of the process. People need to feel secure about mediation and they need to be informed about the decisions they take once there. Above all, family lawyers should absolutely earn an acceptable rate of return for providing that encouragement, legal advice and drafting.

Ironically, LASPO could just make this a reality. The MoJ needs to urgently beef up Help with Mediation so legal aid family lawyers can earn considerably more than the £150 currently on offer to advise clients once mediation is under way.

Such paltry rates help to explain why impacted family lawyers have turned their backs on supporting mediation in favour of unbundled family law services which by definition do not constitute full service dispute resolution.

But this would be a mistake. To grow the market for family law services lawyers and mediators must learn to work in tandem. This is how to meet the needs of the missing middle: average-income private clients who simply cannot afford the likes of lawyer-led negotiations or Collaborative Law. They never could. But post-LASPO, they absolutely need to know that lawyers and mediators working in tandem can resolve their problem for a price they can afford.

So in terms of business development, family lawyers can do one of two things. First, they can cross their fingers and hope that when the new Single Family Court finally grinds to a juddering halt, the MoJ will be forced to restore legal aid.

Or second, they can work with mediators to challenge the widely held public perception that divorce lawyers are too expensive for average income separating families. A new market of one-time shoppers is depending on it.

Marc Lopatin is a trained family mediator and founder of LawyerSupportedMediation.com, which is being piloted by 50 law firms in London, Manchester, Newcastle and Leeds