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mediation costs be recovered by the statutory charge.878

8.23A lot of the details for legal aid for family mediation are left to the regulations.879  These provide that the mediator should assess the means of the client before providing mediation.  Notwithstanding any privilege between them, the mediator is not precluded from disclosing to the Legal Aid Board “any information which relates to mediation” provided to a legally assisted person, which enables the Board to discharge its functions.880  The implementation plan for piloting of franchise contracts by the Legal Aid Board for family mediation services commenced in May 1997.881

8.24Any contract for the provision of mediation must require that the mediator complies with a code of practice.882  The mediator must be required:

“to have arrangements designed to ensure that the parties are encouraged to consider:

(a) the welfare, wishes and feelings of each child; and

(b)whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.”883

Access to Justice - the Woolf report

8.25The changes in England in the family dispute resolution system and the legal aid system are paralleled by changes proposed in the civil justice system of the courts.  Even though Lord Woolf, in his interim report on the civil justice system in England and Wales,884 did not deal specifically with reform of the family court system, his proposed reforms have relevance for case management, and for making alternative systems of dispute resolution (ADR) available and encouraging their use.

8.26The first relevant recommendation is:

“Where there is a satisfactory alternative to the resolution of disputes in court, use of which would be an advantage to the litigants, then the courts should encourage the use of this alternative; for this purpose, the staff and the judiciary must be aware of the forms of ADR which exist and what can be achieved.”

878 The statutory charge ensures that legal costs are recovered from the legally aided client out of an award of monies or the recovery of property.  This seems to be a concession as the Law Society had opposed the absence of a charge where the parties went to mediation.

879 The Legal Aid (Mediation in Family Matters) Regulations 1997, (SI 1997; 1078) in force on 1 May 1997.

880 Rule 5, ibid.

881 Franchising family mediation services, Legal Aid Board, February 1997.

882 An example would be the mediator ensuring that parties participate freely and not influenced by fear of violence or harm - see section 13B(7) of the Legal Aid Act 1988 as inserted by section 27 of the Family Law Act 1996.

883 Section 13B(8) of the Legal Aid Act 1988 as inserted by section 27 of the Family Law Act 1996.

884 Access to Justice, Interim Report to the Lord Chancellor, June 1995.

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