The pilot scheme in London On 26 July 1999, s.29 of the Family Law Act 1996 will be implemented on a pilot basis in the London area.

From that date, solicitors whose firms are within a range of postcodes will have to advise clients seeking legal aid for family disputes to attend a meeting with a mediator to assess how suitable the dispute is for mediation.

There are a number of exemptions which are discussed in more detail later.

The postcodes to be effected by implementation are printed below.

If the firm is within one of these postcodes it should have received guidance from the Legal Aid Board's (LAB) family mediation project team.

For additional information from the LAB about the pilot contact the pilot project team on tel: 0171 813 1000 ext 4992.

The postcodes affected by implementation are: SE1, SE5, SE11, SE15, SE17, SE22, SE24 SW1, SW8, SW9 N1 N2, N3, N6, N7, N10, N11, N12, N19 NW1, NW3, NW5, NW8, NW11 WC1, WC2 EC1, EC2, EC4 W1This is part of a rolling programme of implementation which saw s.29 implemented in a wide range of areas nationwide on 26 April.

The Lord Chancellor's announcement on 22 June, confirming that the government does not intend to implement part II of the Family Law Act in 2000, does not affect the piloting of publicly-funded mediation.

Section 29 is contained in part III of the Family Law Act which was implemented in 1997 and, by regulation, made subject to the LAB approving sufficient mediators to undertake the intake process.

Guidance on the section 29 process If firms are within one of the pilot areas, s.29 has to be considered for divorcing or separating clients at the stage when they would normally consider applying for a legal aid certificate.

If solicitors are acting for a client in uncontested divorce proceedings under a claim 10 they can continue to do so in the usual way.

If they are advising a client about disputed children or financial matters and need to consider applying for a legal aid certificate they must then consider the s.29 procedure.

The flowchart provides step-by-step guidance through the s.29 procedure.

The notes for guidance printed with the flowchart explore the issues which the s.29 process raises.

(The flowchart cannot be reproduced on the database.

Please see original).The funding of legal advice in support of mediation The Law Society has voiced strong concerns about the funding of legal advice underpinning mediation.

Eligibility for legal aid for mediation is set at the higher ABWOR rate.

Consequently, there will be clients who are not eligible for claim 10 advice and assistance but are eligible for publicly funded mediation.

This gives rise to queries about how advice for these clients will be funded.

The importance of clients receiving legal advice before, during and after the mediation process is now widely accepted.

Legal advice underpinning mediation will be funded in a number of ways under the s.29 procedure.

-- If the client is eligible for claim 10 advice and assistance, solicitors can take the client through the referral procedure and continue to advise the client during and after mediation under claim 10.

-- If the client is not eligible for claim 10 advice and assistance, legal advice during and after mediation will only be available from solicitors who have obtained a linked legal services contract with the LAB.

The advice provided under these contracts will also be remunerated at claim 10 rates.

Advice underpinning mediation, including advising the client on the memorandum of understanding and drafting a consent order where appropriate, is being remunerated at claim 10 rates which have not been increased for several years.

In addition, those clients who are not eligible for claim 10 advice and assistance but are eligible for publicly-funded mediation will not be funded by the LAB for advice given before mediation, including advice given on the referral process.

The Law Society is strongly opposed to this and continues to pursue the case for legal aid certificates, limited in scope and costs, to be available to all those who qualify for publicly-funded mediation, enabling them to receive advice before, during and after mediation.

Although to date the government has not accepted this proposal, the Lord Chancellor's family law advisory board, in its second annual report, also recommended the introduction of limited legal aid certificates.

This solution, if accepted, would have two positive results.

First, it w ould solve the problem of funding for those clients who fall into the 'eligibility gap' because they qualify for publicly-funded mediation but not claim 10 advice and assistance.

Second, it would provide reasonable remuneration for solicitors offering advice on what are often complex issues.

The Legal Aid Board (LAB) has confirmed it is going to look at the problem created by the 'eligibility gap' in the near future and the Law Society continues to pursue with the government the case for limited legal aid certificates.

Establishing a relationship with the client It is important to remember that, according to the LAB's current approximate figures, about 60% of cases will not be referred to mediation because they will be exempted from the s.29 process at the referral stage.

More than half of those referred to mediation, that is to say 25% of the total, will not be suitable for mediation and one third of those cases which proceed to mediation will not result in success, that is 5% of the total.

In effect, currently only 10% of all cases are likely to proceed to a successful mediation.

The importance of taking the client through the referral process and making the referral appointment for the client should not be underestimated.

It is at this interview that the solicitor will establish a relationship with their client and, thereafter, they are the single point of contact or continuity in an otherwise disjointed process.

Solicitors are also the only people able to give the client interests-based advice throughout the whole s.29 process.

The client should be clear that, if their case is not suitable for mediation for whatever reason, they can return to their solicitor to consider how to take the case forward.

Concerns raised by solicitors at the LAB roadshows on s.29 The Law Society participated in a number of roadshows held by the LAB as part of the implementation which took place on 26 April 1999 to explain s.29 and offer good practice guidelines on how to operate the procedure.

A number of concerns were raised by solicitors which the Law Society is pursuing with the LAB.

Additional information about this will be included in the next issue of the Society's family law newsletter.

Keep the Law Society informed.

The Law Society is aware of the concerns that this legislation raises and will continue to pursue the need for change where the need arises.

The Society intends to keep firms informed about the pilot through the Law Society's family law newsletter and through the Gazette.

If solicitors are experiencing particular problems with the s.29 process please contact: Anna Rowland, policy directorate, 113 Chancery Lane, London WC2A 1PL.

GUIDANCE ON PILOT PROCEDURES FOLLOWING IMPLEMENTATION OF SECTION 29 OF THE FAMILY LAW ACT 1996(This flowchart cannot be reproduced on the database.

Please see original).NOTES FOR PILOT PROCEDURE FLOWCHART-- Does client qualify for green form advice? Section 29 of the Family Law Act 1996 only affects cases from the point at which a full legal aid certificate would usually be sought.

In many cases, solicitors will advise, as before, under a green form in respect of, for example, divorce proceedings, although the s.29 procedure may need to be followed in respect of, say, disputed children or financial proceedings.

-- Private charging rates Private charging rates will need to be discussed in the following circumstances: (i) If the client does not qualify for green form advice and the issues could be resolved without a full legal aid certificate, so that the s.29 procedure does not a pply; (iii) in circumstances where the client is ineligible, for financial reasons, for publicly-funded mediation.

In such circumstances, the client must be treated as any other fee paying client and cost information, etc, should be provided.

For any fee paying client, mediation can and should be considered in deciding how best to settle the case, but, if there is any likelihood that the client might qualify for publicly-funded mediation, this must be discussed with the client and, where appropriate, the s.29 procedure followed.

-- Exempt proceedings Certain proceedings or cases are exempted from the s.29 procedure under the Family Law Act 1996.

Other cases have been exempted from the need to comply with s.29 by the Legal Aid Board (LAB) -- called exceptions by the LAB.

It is important to recognise what these are and what action to take in the event that an exemption does apply.

In some cases it will not be necessary to submit a completed Form S29, whereas in other cases, this form, completed in the appropriate place by the solicitor, should be submitted.

-- Exempt groups In an effort to avoid the necessity for clients to attend at an intake assessment, when mediation is unsuitable, certain exemptions have been made.

However, the solicitor should still discuss mediation with the client, since, in some cases, notwithstanding that they fall into exempt groups, clients may still wish to attend at mediation.

In effect, the exemption operates to permit a client, in appropriate cases, should he or she so choose, not to follow through the s.29 procedure.

-- Any other reason why the applicant should not be referred to a mediation service There may be other reasons apart from those listed within the exemptions, why the applicant should not be referred to a mediation service.

Form S29 lists the following reasons in s.2(iv): (i) the applicant lives outside England or Wales; (ii) the mediation concerns financial issues and the applicant or partner is bankrupt and cannot deal with their own financial affairs -- this is not applicable in children only disputes; (iii) the applicant or partner is subject to bail or parole conditions which prohibit them from coming into contact with their partner; (iv) the only subject of the dispute is paternity.

Any other reason should be stated on Form S29 in the space provided in this section.

If there is a reason under s.2(iv) why the client should not be referred to mediation the solicitor must fax the LAB head office and obtain a specific reference number (fax: 0171 813 5330).

This number should be inserted under s.2(iv) of Form S29 to enable an exemption to be considered under this section.

Form S29 should then be attached to the application for legal aid.

-- Violence or significant harm It is particularly important for solicitors to try to discuss this with the client; since all mediators will offer parties the opportunity of a joint initial meeting and second, since mediation can only be appropriate in circumstances where both parties can enter into the process without being influenced by the fear of harm.

Some clients may be more willing to admit to this fear in the privacy of a solicitor's office than, perhaps, in front of the person whom they fear.

-- Legal advice underpinning mediation Mediation works best where it is underpinned with legal advice before, during and after the mediation process.

It is important therefore for solicitors to advise clients about mediation before referring them for an intake assessment, as well as advising the client of the need to seek leg al advice at any stage in the mediation process, and particularly, when key solutions are proposed.

If financial issues are to be resolved through mediation, it is important that each client seeks advice from his or her own solicitor, and that thereafter, consideration is given to embodying any agreement reached into a court order.

-- Making a referral appointment (i) If a solicitor is advising a client under a green form, the referral appointment should be made for the client by the solicitor so he or she can ascertain whether or not an appointment is available within 14 days.

All mediators within the catchment area must be approached for an appointment.

If an appointment is not available from any mediator within the catchment area within 14 days the solicitor can certify the client as exempt and apply for a legal aid certificate in the usual way.

(ii) If the client is not eligible for green form advice solicitors will not be paid by the LAB for time spent taking the client through the referral process.

If the solicitor has a contract with the LAB for linked legal advice and assistance, the solicitor may prefer to make the referral appointment for the client in order to arrange to continue advising him or her throughout the mediation process.

If no appointment is available within 14 days, the solicitor can certify the client as exempt and apply for a legal aid certificate in the usual way.

-- What happens if mediation is unsuitable? (i) If the solicitor has been advising the client under green form, and the mediator certifies the dispute as unsuitable, the solicitor may now proceed to apply for legal aid in the usual way.

(ii) If the client is not eligible for green form, the solicitor will need to explain before he or she makes a referral to a mediation intake assessment that, should mediation prove to be unsuitable, the client should return to his or her original solicitor to apply for a legal aid certificate in the usual way.

-- Advising the client throughout the mediation process On entering the mediation process, clients will need to have legal advice available to them for the whole period that they are in mediation.

This will be available to clients in a number of different ways: (i) Clients eligible for green form advice.

If a client is eligible for green form advice, at present, any solicitor can continue to provide legal advice throughout the mediation process under the green form.

The necessary extensions to green form will need to be obtained.

(ii) Clients not eligible for green form advice.

If a client is not eligible for green form but is eligible for publicly- funded mediation, publicly funded legal advice and assistance will only be available during the mediation process from firms that have a contract with the LAB to provide 'linked legal advice and assistance'.

Solicitors who have a contract to provide this may continue to advise clients throughout mediation.

A client may also choose to continue to pay his or her own solicitor to provide advice throughout mediation if his or her solicitor does not have a contract with the LAB for linked legal advice and assistance.

(iii) What happens if the mediation breaks down? If a client has been referred to a contracted solicitor for linked legal advice and assistance and the mediation breaks down the client may either return to his or her original solicitor or remain with the contracted solicitor.

It is important to bear in mind that a client may have ongoing issues with his or her original solicitor which have not been the subject of the mediation.

A solicitor who does not have a contract for linked legal advice and assistance may advise their clients who undertake mediation that, should the mediation break down, they are entitled to return to their original solicitor to obtain a legal aid certificate in the usual way.