Mediation decline may be due to legal aid cuts

The Ministry of Justice’s statistics bulletin for legal aid between January to March, published on 30 June 2017, shows that the number of Mediation Information and Assessment Meeting has fallen fell sharply since The Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LASPO) which was introduced in April 2013.

Four years on, the number of Mediation Information and Assessment Meetings (MIAM) carried out under legal aid stands at around half of pre-LASPO levels.

Before LASPO, clients could not receive a legal aid certificate to cover the cost of their representation at court unless they had first considered mediation, subject to certain exceptions.

LASPO saw significant changes to the scope of family legal aid – with it being withdrawn from many family cases (unless there was independent evidence of domestic abuse or risk to a child from the other party)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

The Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was introduced in April 2013, made no changes to the scope of legal aid for facilitating mediation. Legal aid was also kept for facilitating mediation information and assessment meetings (MIAMs). At the time, the expectation was that the volume of mediation would increase.

Mediators with legal aid contracts have been saying for a long time that the volume of legally aided mediation has fallen and that far from encouraging families to mediate – the effect of LASPO has been to cause a significant reduction in the volume of legally aided mediation.

The Ministry of Justice have an increasing lack of opportunities for contact between clients and law firms brought on by controversial legal aid cuts may have driven the steep decline in the number of family mediation cases, the government has admitted.

The report says: ‘The scope changes reduced the opportunities for contact between clients and law firms. This therefore reduced the potential for clients to be told about mediation and to be referred to it and is likely to have contributed to the decline in mediation take-up following the scope changes.’

Real cuts to financial eligibility levels

Another significant factor is in our view the failure of the government to increase financial eligibility levels. 5 years ago, it was much more likely that parents receiving child tax credits would be eligible to receive legal aid for mediation than is the case now. What we have seen is a slow whittling away of eligibility through inflation.

At the same time the government have not increased payment rates to either mediators or to solicitors for quite some time. Work is paid for by fixed fee – and therefore payment for work undertaken by legal aid practitioners has therefore continues to reduce in real terms. This has led to a number of solicitors practices giving up their legal aid contracts and when I attended the recent resolution mediation supervisor’s forum there were indications from a number of mediators that their practices were also going to give up undertaking legal aid work.

I’ll finish here before the blog starts to become too political – but the lack of funding of family justice is a very real problem for many parents and more significantly there children. If the magic money tree exists then it really does need to be given a shake so that what remains of legal aid can at least be properly funded.