May I draw to your attention the latest figures for referrals to mediation? I think it will be acknowledged that the fall has continued since the abolition of legal aid for solicitors in non-DV family cases.
The reasons for this decline are obvious and are seated in self-interest among the professionals involved, from solicitors to court staff.
Several examples follow:
1. The government now has no interest in promoting mediation to save legal aid costs through solicitors. Mediation had been a handy tool to justify the removal of legal aid from solicitors’ firms. With legally aided mediation in place, the Legal Aid Agency (LAA) could not be judicially reviewed as it was generally accepted that clients would be well served by the ever growing number of well-trained mediators. Now the LAA is probably rubbing its hands with glee at the falling cost of legally aided mediation on top of family legal aid savings from solicitors.
2. The FM1 process is widely abused in several ways:
a) Courts are not universally accepting it before issuing proceedings.
b) Legal firms with a mediation franchise simply agree to send an FM1 to each other on a like-for-like basis.
c) When the FM1 becomes compulsory this will not remove b) but proceedings will still be issued by court staff without an FM1 as they are anxious to retain their jobs in the face of court closures/mergers and a unified Family Court roll-out. The need for an FM1 will simply be ‘overlooked’.
d) Solicitors firms that wish to survive and need private client work no longer positively support referrals to mediation. They only tell their clients to attend a MIAM (mediation information and assessment meeting) to get the FM1 – hardly an endorsement of mediation.
e) Further, many legal firms do not actively promote mediation as it does not serve their short-term fee-gathering targets. There are fixed fee options on an ‘a la carte’ basis. The firms persuade clients to get funding from their family – or worse, contrive some ‘domestic violence’ to gain a full legal aid certificate.
3. If the government is no longer interested in mediation then neither is the LAA as its only brief is to manage the much reduced budget according to the new order. It now has no mandate to promote mediation.
4. And what of the Family Mediation Association (FMA)/CMC/Resolution? I do not see or hear them shouting from the roof tops at the demise of mediation.
What all this demonstrates is a total disregard for ‘the best interests of the client’ by lawyers and court staff alike. Principled government has long since died but the professions were supposed to operate on a higher plain.
Sadly, in many legal practices, financial considerations have overridden professional duties to clients. Using their position of influence over clients who are at a vulnerable stage in a relationship breakdown, practices manipulate the client to their own financial advantage by failing to inform them of the benefits of mediation in any meaningful way.
Mediation will survive in the short term, with the well-informed client attending a local mediation practice direct. But the legally aidable client is largely being side-tracked and denied this service (which would be free for them if eligible) by many law firms. It is therefore essential for the government primarily, or FMA/CMC or Resolution, to advertise fully that mediation could be free through legal aid for the lower paid or those on a passporting benefit.
In the meantime, the less well-off continue to be exploited by the better off. Sad times.
Chris Nicholls, C Nicholls Solicitors, Bodmin, Cornwall