Local experiences as a Family Mediator
As a Family Law Mediator and Associate Solicitor at Blake Morgan in Hampshire I take part in the Portsmouth Family Court in court mediation scheme.
Local family mediators volunteer their time to attend at Court for all or half of the day to talk to parties to the proceedings about mediation and whether it is a process they would like to consider to resolve their dispute. Their disputes usually involve matters relating to their children and/or resolving matters relating to their finances. Unlike other failed pilots set up in other local Courts which attempted to arrange mediation at Court, this scheme simply offers people the chance to find out more about the process.
What happens at court?
A typical morning would involve arriving at Court at 9am and then seeing the Judge with the Children and Family Court Advisory Support Service (CAFCASS) officer. Together we discuss each case and decide whether any might be suitable for mediation. I then speak to the parties and/or their solicitors or barristers, if they are represented, about mediation and answer any questions they might have about the process. More often than not people have no legal representation and therefore really appreciate having an independent professional to talk to and being given information about mediation.
If any of the people are interested in mediation I can then arrange to contact them both to start the ball rolling, or refer them to another mediator who offers legal aid, which Blake Morgan does not. The Court can adjourn the proceedings to allow the couple to try mediation and then come back if need be.
Obviously, when going through the cases with the Judge and the CAFCASS officer it is clear that some cases are not suitable for mediation. Such cases might involve allegations of domestic violence, alcohol or substance abuse, child protection issues and so on. A key part of mediation is that the couple are able to sit together with the mediator to talk through and try to resolve their issues. Mediation is completely voluntary and the mediator cannot give legal advice, only legal information. Mediation can be done on a shuttle basis, with each person being in a separate room, and the mediator shuttles between each person. This has drawbacks and is more usually time consuming, but can work in some cases.
Since 1st April 2013 when the Legal Aid Sentencing and Punishment of Offenders Act 2012 came into force, legal aid for family law cases has been drastically cut. Now, barring certain exceptions, legal aid is not generally available. Family mediation, though, with tightened criteria, can still be funded by legal aid. The MoJ statistics published on 24th June 2014 shows that the number of mediation starts has increased since 2006/2007 but it dropped from 13,609 in 2012/2013 to 8,400 in 2013/2014.
This has been attributed to the removal of lawyers from the process as we as lawyers tell clients about all the options they have to try to resolve matters. One of these options is mediation. Perhaps in an effort to combat this, the Government announced that a free mediation session will be available from 3rd November 2014 even if just one party qualifies for legal aid. Previously only the legally aided person was entitled to have the session for free, and the other person had to pay.
Speaking to a local mediator I know recently, she told me that her experience of this change thus far is being put under pressure to conclude the mediation in one very lengthy session. Normally, mediation sessions should last around one and a half hours, as they can be emotionally draining and difficult. People lose focus and it becomes less productive, so more sessions are then diarised. When looking at resolving financial matters, often the couple need to go away to obtain information about their financial circumstances and find out about other matters such as their mortgage raising capacities. It is therefore not possible to conclude matters in one session.
I hope this change helps people to resolve matters more in mediation as the MoJ statistics also show that of the 8,400 mediation starts in 2013/2014 79% reached an agreement. I enjoy working as a mediator and assisting couples to talk through things constructively.
There are calls for the Government to use legal aid to help couples obtain legal advice again to help them understand their situation and the options available to them. This would no doubt create more of a level playing field between the couple and increase the numbers of mediations, but in the current climate of austerity I am not optimistic of that happening any time soon.