How successful is Family Mediation?

How successful is family mediation?

It is impossible to know for Non-Legally Aided Mediation. There are no central and independently audited statistics.

What the Legal Aid Agency Mediation statistics show

There are statistics for Legally Aided Mediation though.

The outcomes of legally aided mediations are audited by the Legal Aid Agency. If success is over claimed, the Legal Aid Agency will disallow the success fee that is otherwise paid. If there was a pattern for this happening – then there would be sanctions under the terms of the Legal Aid Contract.

We can therefore say that the Legal Aid Agency statistics are reasonably reliable.

The latest round of statistics have recently been published

Here is a table:

The Legal Aid Agency say:

Family mediation can be used to resolve issues to do with children or property and finance following divorce or separation, and the ‘all issues’ category describes mediations which deal with both areas.

The children category consistently accounts for the majority of starts, comprising 64% of all mediation starts in the last year (this information is taken from the more detailed data published alongside this bulletin).

Mediations can either break down or result in an agreement.

Like other areas of mediation, agreements fell following LASPO. They have since stabilised at just over half of pre-LASPO levels (see figure 16).

Mediations in the ‘all issues’ category can reach full agreement, where agreement is reached on all issues, or partial agreement, wherein an agreement has been reached on either children or property and finance, but not both. As such, successful agreements include both partial agreements and full agreements.

Over the last year 62% of all mediation outcomes involved successful agreements. The rate of success varied between different categories of mediation, with the highest proportion of agreements (63%) in the children category (this information is taken from the more detailed data published alongside this bulletin).

What do the figures tell us?

 There is a lot less Legally Aided Mediation taking place than before the legal aid reforms which were supposed to promote mediation: 15000 ish down to around 8000 ish per year (the 2016-2017 were down so far from 2015-2016)

A greater proportion of mediation is about children issues and this is more successful than financial mediation

Success within these figures also includes partially successful. This is most likely to be where children issues have been resolved and financial issues have not.

If around 40% of mediation is unsuccessful – the failure rate for financial mediation will be higher – this is because success includes partial success. What this is most likely to mean is a failure to resolve financial issues but that there has been success in resolving child arrangements. As in my experience many couples tend to focus on one area of dispute, resolving children issues when finances are in dispute tends to be more straightforward.

40% failure rate means that nothing has been resolved at all.

The proportion of successful mediation is no better now than before the legal aid changes – why is this? 64% successful in 2006/7, 68% success in 2007/8, 66% success in 2012/13.  Arguably the previous legal aid rules pulled even more contact cases into mediation.

Points to note/Questions

• To have a legally aid contract for mediation a mediation service needs to have an experienced mediator working in the service and overseeing its mediators
• Any mediator can undertake non legally aided mediation. Inexperienced mediators are likely to have higher failure rates.
• If experienced and quality assessed mediators are more successful at children mediation than simpler financial cases – can we realistically think that they will be any better at more complicated financial cases – with multiple properties and significant pensions and other assets?
• The normal family mediation model is only moderately successful in simpler financial cases – is it really suited for more complex cases?
• There are a lot of mediations that break down – where to the cases go… largely to Court…where else can they go? which means the cost of mediation was wasted.
• is a 54%  success rate for mediation in financial cases acceptable?
• is a 63-ish% success rate in children cases acceptable? More so than finances certainly.
• The help that mediation provides in successful cases shouldn’t be underestimated – this is a lot of families assisted to find a better way… but …
• Couples entering mediation are ones where the couple want to mediate, they want to find solutions, and the mediator has assessed that there is a reasonable prospect of success. The failed cases shouldn’t be regarded as hopeless cases. The hopeless cases will already have been filtered out.

Our View

• Mediation can be very difficult to set up – clients (often rightly) worry about whether the other is truly willing to negotiate, and sometimes they struggle themselves with the idea that they may have to compromise.
• Sometimes mediation is undermined by solicitors. For example – I had one recent case as a solicitor where my client agreed resolution in mediation and shook hands – yet the other party’s solicitor immediately sought to renegotiate (despite her client having received advice in support of the mediation process). In the end my client paid some more to avoid litigation costs and because he had had enough. The mediator would count their work as a success – but this didn’t tell the whole story. In another case (financial) , as a mediator; I sent a couple off to get legal advice and a pension report and some legal advice. I was contacted some time later to sign the mediator part of the court application. They hadn’t obtained the pension report, but they had continued (unsuccessfully) negotiation via round table meetings and with counsel. The mediation had not broken down when I had last seen them – so why had they not come back?
• The traditional family mediation model (mediator and clients in a 3 way meeting – with legal advice between meetings) struggles with financial cases and is best suited to children cases.
• For financial cases it is often better to involve solicitors – but this means moving to a shuttle model with each team in different rooms. As a mediator who is also a Civil Commercial Mediator the different style of civil mediation is better suited to more complex and involved cases – including where professionals are involved. Involving Solicitors means that the mediation is less likely to unravel afterwards.
• But no mediation can guarantee success. It cannot – because both sides are free to walk away – that is both a strength and a weakness. The voluntary nature of mediation helps because the couple are choosing to find a solution. It is their commitment. But there can clearly be no guarantees.
• What can achieve 100% of decisions is going to Court! But this is very expensive and divisive. But Court decisions are not necessarily long term solutions
• What can also achieve a 100% decisions – but at less cost by combining mediation with arbitration
• Arbitration is another type of dispute resolution where a private judge (the arbitrator) is engaged. Arbitration is a flexible process which is much quicker than Court. There is a lot about it our website.
• Under our mediation with arbitration scheme – if a mediated agreement cannot be achieved – then the case moves seamlessly into arbitration where an arbitrator (a private judge) makes a legally binding decision. But the process will be less divisive and perhaps 1/3 of the cost of a court process and much quicker – there is much more about all this on my website. Many of the benefits of mediation are retained because the couple are also choosing together to arbitrate if the mediation fails. It is therefore a voluntary process with a binding outcome. This has to be the way forward… combining the benefits of negotiation with the certainty that there can be a quick outcome if the mediation fails.
• But the better model for mediation for finance cases is the civil model – which is purer and less emotive negotiation which involves solicitors better.

Is a 54% -ish success rate for financial mediation acceptable? You can see why people are wary – particularly when money is tight – but Court is rarely the answer. We think that our combination of mediation with arbitration provides the best option.

If you want to see the legal aid data look here.

Should clients be put off  trying mediation?

No – remember overall 62% of cases were resolved. Resolution would have saved clients a lot of cost and should also have preserved or improved family relationships.

But – prospective clients need to be realistic – mediation is no magic wand.

For mediation to work, clients need to fully commit to the process and deliver on commitments made during the process. They must be prepared to have some give and take.

Perhaps also clients need to be more selective in their choice of mediator?

What are the mediators skills and background. Personally I always refer my clients to specific experienced mediators who are either practicing solicitors or who are non-practicing solicitors. But – I think my model of linking my mediation practice to a panel of arbitrators who are known to me is the way to go (although unfortunately legal aid is not available for arbitration – although if the matters still unresolved at the end of a mediation are reasonably narrow then a paper based arbitration can be inexpensive and certainly cheaper than the alternative)

Me – Family Law Solicitor/Family Mediator/Civil Mediator/Arbitrator

I have been a Family Mediator since 1996 and am a supervisor of other mediators. I am accredited by the Family Mediation Council and the Law Society. I am also a Civil/Commercial Mediator and member of the Devon and Somerset Mediation Panel. I am a Family Law Arbitrator (Children Scheme) via IFLA and I am a practicing Solicitor with Accreditations via the Law Society and Resolution.

In other words I am quadruple qualified.

This means I am aware of the pros and cons of all relevant practice models and am well placed to comment.

I have been undertaking legally aided mediation for nearly 20 years. I have my own Solicitors practice based in Honiton but covering Taunton and Exeter. Our Mediation with Arbitration scheme is portable to anywhere within a reasonable travel distance…

But, all this means that I understand how the different styles of practice work – and don’t work – and perhaps also how they can best work together…