National Family DR Week and the Family Mediation Crisis

This means National Family Dispute Resolution Week and the idea is to promote dispute resolution in the context of family disputes. In other words; Family Mediation, Collaborative Family Law and Arbitration.

National Family DR Week  will be taking place this year between 25-29 November. By unfortunate coincidence this is also Domestic Abuse awareness week. This is such a shame because this clash may well reduce the effectiveness of both weeks.

Of course, as someone who has years of experience both as a mediator and as a Solicitor with special expertise in assisting the victims of abuse, the last thing that I would want to do is to encourage those who are victims of abuse into a mediation process that is unsafe.  I will talk more fully about mediation and safety in a forthcoming blog. Suffice to say, that before setting up a mediation, I will always undertake a thorough risk assessment. But I hope the victims of abuse will not in any way feel pressured to attempt mediation.

Whist the timing this year is unfortunate, National Family DR Week is a very worthy event indeed.

We have signed up to DR week. There is a website at the end of the following link; DR Week Website As I write, we are recorded on the list as “Family Law and Mediation Solicitors” rather than “Ian Walker Family Law and Mediation Solicitors” which is our trading name. I have asked for this to be corrected. But we are certainly in the list.

Basically, the idea is that organisations which offer family Dispute Resolution will organise events to promote dispute resolution and themselves, and the national organisations will try to get some national media coverage.

The week was founded by the Family Solicitors organisation Resolution (here is a link to the  Resolution Website). I am a longstanding member of Resolution and have been Chair of the Devon regional group.

The week has been fairly successful in recent years, and each year is better than the last.  I am sure that we will be doing something. I haven’t finalized the details yet, but watch this space. In the meantime, I am also exploring with other local mediation services whether we can do something together to try to reach a wider audience; again; watch this space.

This brings me to the subject of the mediation crisis.

DR week cannot come quick enough this year for many mediation providers.

The legal Aid Changes in April were supposed to have been the start of a family mediation revolution. Unless there is a safety issue, parents who would otherwise have got legal aid to go to court will only get legal aid for mediation. (and for legal advice in support of the mediation, after the mediation has actually started).  There is a lot to commend this. (see my page how too much advice too soon can make it harder to solve the problem).

The unexpected crisis is that the number of family cases entering  mediation is down and has remained down. Many of the larger services are feeling a real pain. There have been what could be described as crisis talks at a national level.

Why is this?

As both a Family Solicitor an a family mediator, with Legal Aid contracts for both family law and family mediation, I can see clients who want initial legal advice , or mediation or who don’t  know what they want (other than to get things sorted out) (I give an initial options meeting).

The simple fact is the most people with a family problem want to have legal advice, before deciding what to do next. People know it will cost. People know legal advice is in range f £150-£250 perhour. if money is limited (and generally it is) then they are prepared to pay for this. Many Solicitors (like ourselves) are offering a pay as you go service, so clients can more easily run their own case, but get bits of advice as they go along.

Many do not understand the value of mediation.

Question; “Whats your hourly rate for mediation?”

Answer; £80 +VAT per hour each

Response; “That’s expensive!”

In comparison;

Question; “How much do you charge as a Solicitor?”

Answer; £150 + VAT per hour.

Response; “That sounds like excellent value!”

Of course clients are buying something different, but the view is often that the value of mediation is less. Also, you explain to one of the couple the benefits of mediation, but the other just isn’t interested.

The basic problem is a combination of a lack of understanding of the value and benefit of mediation and a lack of it being validated by family Solicitors (in the way it was before April 2013). Most referrals made to Mediation services were by Solicitors. Now clients are more often expected to find their own way, and they are getting lost.

Before April, mediation was an option (an option both as a way of resolving cases and as a free choice). After April, It is effectively compulsory for those on low income. As such it is seen as being second rate, second best. AND for those who are entitled to legal aid; if the other wont mediate, then unless there is a safety issue, they are at a dead end. They have no option but to borrow money or do nothing. No access to justice there. But worse, a power imbalance is created if mediation does take place. A non legally aided participant knows that a legally aided participant has potentially no other option but mediation and can potentially misuse mediation to their advantage.

The result of the legal aid changes, is less mediation and the value of mediation undermined.

At the same time, the Courts are seeing a significant increase in the number of cases brought by litigants in person. (applicants without Solicitors).

But what is the solution? 

One option is for the the Courts to take a clear lead, and refuse to list cases for final hearing (unless there is a safety issue) unless both sides have met with a mediator outside of Court and properly considered mediation.

Another, is to widen the scope of legal aid to allow initial advice (again) generally, but no further work until mediation has started. Then to make legal aid available for Court if the other party refuses to attempt mediation (unless there is a safety issue). However, I cannot see Legal Aid being reintroduced in any way,any time soon.

Alternatively for Legal Aid to pay for both to attend mediation provided one is eligible. (more cost, but perhaps if the case settles, and the assets are over a certain level, the couple would repay the costs (what we call the “statutory charge”)).

Or perhaps a more meaningful awareness campaign from government?

I am a great believer in the value of mediation, (especially when the couple have children), but I am aware of its limitations and I am a Solicitor as well. When acting as a Solicitor, I will continue to refer appropriate cases to other mediation services.  As a mediator I will no doubt be frustrated by the undervaluing of mediation (luckily I have a steady stream of mediation cases and as a dual service operating both as a family Solicitors and as a mediation service, I am not dependent on only only one stream of work). But we shouldn’t be in a mediation crisis at all. It is such a shame.

Lets hope DR week is a success.