Mediation – Private or Legal Aid

Mediation – Private or Legal Aid

The availability of legal aid in family law is limited to cases which involve domestic abuse following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in 2013. However, the alternative method of mediation is still available where abuse has not occurred. Mediation avoids going to court. Instead, it allows disputing parties to agree on how assets are divided with the assistance of a neutral mediator. A mediator will never favour one party’s side over another. Agreements via mediation can be made upon finances, property and children. It provides a great way of keeping costs down while reaching an amicable outcome.

The Family Mediation Council (FMC) oversees six mediation organisations, including The Law Society and Resolution. Following the government placing a greater emphasis upon the use of mediation in family law, The Family Mediation Standards Board (FMSB) was introduced. FMSB has delegated powers to both advise and oversee the implementation of the FMC Code of Practice. The 2014 Mediation Taskforce also introduced a free initial meeting for any privately paying, second party to a dispute. Together, these actions assist in highlighting mediation as a valid alternative to court. Particularly at a time when the cost of divorce has more than doubled since 2014.

Where there is no risk or prior occurrence of abuse, the government is wholly in favour of mediation filling the gap left by the current restrictions imposed by LASPO. This approach allows for the increased efficiency of our commonly over-stretched courts. Mediation is far more cost-effective than the judicial system. It is now necessary that mediation has been attempted before any application to court can be accepted. Thus, courts have seen a dramatic decrease in the number of family law cases coming before them (a 60% drop following LASPO). In fact, according to statistics for April to June 2017, new cases decreased by 13% compared to the same quarter in 2016. Completed claims decreased by 16% and expenditure decreased by 18% as well. Whilst still falling, the steep decline caused by the introduction of LASPO now appears to be slowing down. More surprising, Mediation Information and Assessment Meetings (MIAMs) decreased by 11% in this same quarter with the lowest number of mediation starts (1,600) since LASPO came into force. These statistics appear in sharp contrast with the government drive to increase the use of mediation.

Mediation is a positive alternative to going to court. Facing a former partner in court, who may be called to cross-examine you, will be a daunting prospect for many. The decline of a relationship is a stressful enough time. Mediation reduces this anxiety and empowers the parties to reach a mutually satisfactory agreement in private without the strict formalities of court. Furthermore, that agreement will be made by the parties themselves. A mediator will not decide upon the settlement, unlike courts where a judge will have the sole power to decide on the outcome.

Traditional litigation is not well suited to family law; hence it is so worrying that the numbers of people seeking this alternative route are falling. Successful mediation can help preserve relationships in a non-confrontational way, whilst being far quicker and cheaper than court litigation. Cost-cutting is a good motivating factor for the favouring of mediation over litigation. However, it must not come at the expense of access to justice for all. It is hoped that the government will better promote mediation going forward, as it is a great alternative means of reaching agreement in family law. Where legal aid has been denied for litigation, it is imperative that alternative methods are sufficiently highlighted.


For more information on Legal Aid and Mediation check out our Family Mediation Nottingham department.

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About the Author:

Heather Webb
Heather is currently in her second year of the MA in Law at the University of Bristol which is a qualifying law degree. Prior to this she studied English Literature at undergraduate and enjoyed 5 years in employment within diverse sectors such as welfare-to-work and pharmaceutical headhunting. At present, she is studying EU law which has really cemented her fascination with the Brexit process and what it all entails for the UK. Outside of studying, Heather likes to practice yoga and volunteer in her local community.