Cuts in legal aid and family mediation

You will all know about the recent strike against cuts in legal aid – indeed may even have participated. Cuts already made in Family Law have had a devastating effect on Family Mediation this year.

In April 2013 there was a drastic reduction in legal aid for ‘straightforward’ divorce, theoretically balanced (to some degree) by an increase in funding for Family Mediation of £25million. At the present time this pot is underspent!

Prior to April, if a solicitor was acting for someone eligible for legal funding during the process of divorce and separation, the cost effective way would be for clients to negotiate a settlement at mediation and then they would simply need the Consent Order for the court. Thus most referrals to mediation services were via solicitors, the clients very often having not heard about mediation before. With the cuts in legal aid, clients are not getting past solicitors’ receptionists without payment and there is obviously a clear disincentive to share the work/fee with mediators.

Whilst there is still legal funding for mediation, the second ‘whammy’ is that the eligibility criteria have been changed such that the Subject Matter of Dispute (often the family home) is taken into account as capital for All Issues or Property and Finance mediations, such that a couple owning a property with a value of £316,000 would have to pay for mediation, even if they were receiving Income Support. Children Only mediation has more stringent criteria again. This obviously affects people in different parts of the country in different ways.

The consequences of this are that referrals to Family Mediation Services have gone down by about 50% since April. Many people who would have been eligible for funding before April are unable to engage in mediation due to the cost. Courts are filled with Litigants in Person, causing time delays and disruptions in court. Many people are simply dividing their assets and making arrangements for children on an ‘ad hoc’ basis with no thought to longer term outcomes or what will happen when their circumstances inevitably change.

Unfortunately this lack of joined-up thinking is going to produce unintended consequences in the long term, which will need careful management. However, the closure of a number of Mediation Services in this year suggests a loss of expertise and skills which may be difficult to reestablish when that time comes.

Jane Elias

ADR and FMA Accredited Mediator, CQSW Approved Social Worker, BSc (Hons) Applied Psychology, Diploma in Applied Social Studies, Chair of Business Mediation Matters, Diploma in legal Practice Global Mediation