After a series of recommendations made by the independent Mediation Task Force, in August the British Government announced plans for a single mediation session for both parties, even if only one party were eligible for Legal aid funding. By covering the cost of a “single mediation session for everyone” it is hoped that those not eligible for legal aid who may be reluctant to pay to attend a session, will be encouraged to engage.
Family Justice Minister Simon Hughes has clearly invested a good deal of political capital into this move, in the hope that the new measure will persuade more separating couples to go down the mediation route and ultimately reduce the number of divorce cases going through the courts. “We know mediation works and we want more people to make use of it. This is why we are announcing... funding for free mediation sessions, improving the advice and information available for couples who are separating.”
As powerful a process as mediation can be for keeping divorce cases out of the courts, the move does have all the hallmarks of using a sticking plaster to treat a severed limb. As legal aid cuts continue to push the family courts in England and Wales to breaking point, will incentivising mediation in this manner really stem the increasing numbers of litigants defending themselves in court?
Since April 2014, mediation, information and assessment meetings (MIAMs) have been compulsory for couples seeking to divorce through the courts, but as yet there is little evidence that this is helping to stem the tide of divorce cases going through the courts, let alone ill-prepared unrepresented litigants clogging up the system.
Resolution chair, Jo Edwards, believes that this state of affairs is creating to a two-tier system, in which wealthier litigants choosing to opt out of the backlogged family court system altogether in favour of private arbitration hearings. "We accept you can't go back to [funding family cases from start to finish] but if you have a system at breaking point that will be more costly. The family courts system is very, very, very stretched.”
The policy of legal aid cuts has clearly then become one of a false economy. By cutting costs at one end of the system, the financial problems are now inevitably manifesting themselves at another point in the system as unrepresented litigants, who have not been advised as to the importance of negotiation, taking up more and more valuable court time.
Edwards is doubtful that the planned changes in Legal aid for mediation will have any noticeable effect on either take up, or the number of cases resolved outside of court. She has urged the Government “to allocate funding to allow separating couples to understand their legal situation, explore the options available to them and support other dispute resolution processes in addition to mediation which may be more suitable for a wider number of people.”
There is no doubt that removing financial barriers to mediation for both parties is a step in the right direction, but it’s only come about after taking two steps back. The complexities of separation involve instilling in litigants the importance of negotiation and as long as people are being denied this vital legal advice, which should sit alongside mediation as one of a number of options the court system will continue to creak under the strain. Thinking that a one-size fits all approach will ultimately work is foolhardy.
Another viewpoint is that the current requirements to divorce, as they stand, are outdated. In April 2014 James Munby, stated the need to introduce a “no-fault” divorce in which both parties could give their consent to divorce and the matter could effectively be handled outside of the court system as a largely administrative matter. Munby isn’t the first to have raised the prospect of divorce by consent; a “no-fault” provision even featured in the Family Law Act of 1996 but was scrapped by the Government of the time.
Jo Edwards thinks that successive governments have long dodged this bullet, for fear of being seen as making divorce easier and therefore by association, debasing the institution of marriage. Whilst there may be merit in this viewpoint, it’s clear that divorce rates aren’t going down, whilst the Family Court system in England and Wales continues to creak under the weight of cases.
Incentivising mediation may be a move in the right direction, but it’s certainly no panacea for the systemic deficiencies brought about by cuts to legal aid. Isn’t it about time then, that we explored all of the options available to us?
By Muna Saleem