Legal aid for family mediation
8.20The Lord Chancellor proposed in the Green Paper that suppliers of mediation, will be eligible for contracts for legal aid services. “The Government does consider, … that family mediation is both more effective and more suited to resolving the kinds of problems that arise in most family cases than representation in negotiations by solicitors, or litigation”.870 The monitoring and auditing system would study outcome measures,871 for court and non-court based solutions.872 Specifically, for family cases, advisers would have to assess the likely effectiveness of mediation, based on the importance of the case to the individual, the cost/benefit and the availability of alternatives.
Refusal to mediate
8.21Mediation would not be compulsory but advisers would have to record acceptable reasons for refusal to mediate.873 Acceptable reasons would be listed in guidelines and include cases involving domestic violence or care orders.874 So, “point blank refusal to mediate would not be considered a good reason, and the solicitor would not be able to represent a client who could offer no reason for their decision not to choose to mediate.”875 This view is justified by relying on research:
“that shows that at least one party usually starts off by refusing even to consider mediation, but once they have visited a mediation service and had a personal explanation of how mediation works and of its benefits, they change their minds and are willing to at least to attempt mediation”.876
Family Law Act 1996 and mediation
8.22Section 27(3) provides that legal aid for mediation will not be granted unless “mediation appears to the mediator suitable to the dispute and the parties and all the circumstances”. The Act also provides that a person shall not be granted legal representation unless he has attended a meeting with a mediator to determine the suitability of mediation and if it is suitable, “to help the person applying for representation to decide whether instead to apply for mediation”.877 Relevant exceptions are proceedings under those parts of the Children Act 1989 dealing with protection. Provision is made in section 28(3) for the legally assisted person to pay a contribution towards the costs of mediation. Regulations may provide that the
870 Supra at paragraph 9.7.
871 Outcome measures look at case results, time taken/delay and client satisfaction. They would look at success rates but would not assume that all cases should be successful.
872 Green Paper, supra at paragraphs 6.42-6.48.
873 Ibid at paragraphs 9.7 and 9.8.
874 Ibid at paragraph 9.8.
876 Ibid at paragraph 9.11.
877 Section 15(3F)(b) of the Legal Aid Act 1988 as inserted by section 29 of the Legal Aid Act 1996. The implementation of section 29 will be piloted in two areas initially which will assist in planning implementation throughout the country.