_MG_5336How 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:Legal Aid Mediation Statistics 2017

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.

Lets have a look at success rates in more detail…

There are more detailed statistics published Mediation Stats ChartMediation success statitistics

 

 

 

 

 

 

 

 

 

 

 

 

 

 

These charts are for the most recent full calendar year.

The overall success rate in finance only mediation is only 54%

When both finances and children issues are considered in mediation financial issues are resolved in only 51% of cases. Children issues are resolved in 60% of those cases.

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 at https://walkerfamilylaw.co.uk/solicitor-led-family-mediation/mediation-arbitration-scheme/ 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 https://www.gov.uk/government/statistics/legal-aid-statistics-october-to-december-2016

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…

Avoiding disputes about Christmas contact or finding solutions

As an experienced family law solicitor I know that Christmas is not a happy time that everyone. Indeed it can be very lonely and depressing. Some parents are for various reasons unable to spend time with their children on the main days of the Christmas holiday or even at all.

Family disputes in the run-up to Christmas

In the run-up to Christmas we deal with a surge in cases where separated parents are in dispute over the arrangements through which children will spend time with each parent over the Christmas holiday. Here are some hopefully helpful tips.

Tips to avoid disputes about the arrangements for children in the run-up to Christmas

(more…)

Rights of Women

Rights of Women is a women’s voluntary organisation committed to informing, educating and empowering women concerning their legal rights.

The organisation is based in London and was founded in 1975. They seek to influence policy by undertaking original research, preparing responses to policy documents from Government and other sources. Rights of Women  organise conferences on women’s rights, and hold public meetings. They want women’s voices heard at every stage of public policy formulation.

In addition Rights of Women  offer free confidential legal advice to women on through their own advice line. Their website contains a lot of useful information and a link can be found here; Link to Rights of Women Website

Challenging the rules restricting Legal Aid

Rights of Women were recently successful in being granted permission to challenge the evidence requirements often referred to as the ‘domestic violence gateway’ to legal aid in many private family law cases.

The Law Society has supported their challenge (brought by the Public Law Project on their behalf) over the lawfulness of Government changes to legal aid which are preventing victims of domestic abuse from getting legal aid for family cases, even when it is clear there has been violence, or there is an ongoing risk of violence. Rights of Women argue that this is not what parliament intended.

A full hearing is expected before the end of the year

(more…)

Are we the right Family Law Solicitors or Family Mediators for you?

What follows is a short piece which formed the basis of our Advert in East Devon’s Midweek Herald Newspaper in January 2014.

We regularly advertise in the Midweek Herald because it is a free newspaper that is delivered to homes in Honiton, Seaton, Axminster, Colyton, Beer and Ottery St Mary. It can also be found in Sidmouth. Our main office is in Honiton, although we are also able to see clients by appointment at our branch offices in Exeter and Taunton, so the Midweek Herald is a natural place to advertise. As an East Devon resident, Ian has been reading the Midweek Herald for quite a number of years.

Family Law and Mediation Experts in East Devon

Ian Walker has been a specialist Family Law Solicitor since 1992 and a Family Mediator since 1996. Ian has worked for Solicitors Practices recognised as amongst the best in the South West. Ian has a long commitment to good Practice and has served as a Member of the Family Law Committee of the Law Society, which promotes good practice and Law Reform. (more…)

Traditionally the summer is a quiet time for family law lawyers. The autumn sees families working out how best to sort out difficulties. Difficult decisions need to be made. This piece is intended to help.

Although Ian Walker Family Law and Mediation Solicitors only properly got going in March 2013, I have lived and worked in Devon for 14 years. I have been a specialist Family Law Solicitor for 21 years and a Family Mediator for 17 years. Among other things, I was the Chair of the Devon branch of Resolution for a successful 3 year term in office before standing down last year. I was elected to this role by Family Solicitors across Devon. If you have not heard of Resolution, you should visit their website at http://www.resolution.org.uk/about_us/ . As an organisation Resolution has in its 30 years transformed what is good practice and heavily promoted dispute resolution through Mediation and Collaborative Family Law.

 

Value for Money

In Family disputes this is a combination of;

  • achieving a good outcome,
  • in as short a period of time as possible and
  • spending as little money as possible.

Family Law problems are problems which are resolved in the shadow of the Law. If there is no agreement a Judge will make decisions. Even if there is agreement, a Court Order may be needed to put it into effect (For example a Divorce or a “clean break” or pension order), and trying to avoid Solicitors completely is almost always a false economy. However choosing a Solicitor is not always easy. There are some longer pieces on my website on this subject, but generally the main things to consider are;

  • What is their experience and how do they work? For example will they delegate all the work to someone junior in their team? Do they have too many cases to give you the time that you need? Are they a member of Resolution?
  • Are they Outcome Focused? Or are they easily distracted into problems which will slow the case down and which will do little to affect the final outcome?
  • What do they charge? Giving quotes is always difficult. The Legal Ombudsman published a report earlier in the year which said that he received far too many complaints from people whose Solicitor had quoted low in order to win the work and then way exceeded the quote. I would always advise anyone to concentrate on the hourly charging rate in combination with experience and attitude, rather than a hypothetical overall figure.

 

Value for money for also depends on the client. Generally, if you want to spend less, you need to understand what is a reasonable outcome or range of outcomes, and then get to the negotiation table as soon as possible. If negotiation fails, you need to get to a Court Hearing (with a realistic and well prepared case) as soon as possible. Too often I have seen people wasting money by avoiding getting on with things and getting stuck with long and pointless letters going back and forth in an expensive point scoring exercise.

A good Solicitor will steer their client through the best format to achieve a good and realistic outcome, whether that is Family Mediation, Collaborative Family Law, Solicitor led negotiation or Court Application. The skill lies in finding the right and best process for the client and their family and helping them to make the most of it.

It is also true to say that there are good and experienced Solicitors in the towns of East Devon, and there should be no need to travel into Exeter for Family Law or Mediation. There tends to be a higher turnover of staff in larger practices as well as a greater use of unqualified caseworkers. Local is often more personal and the Solicitors will know each other, which can also smooth the case along.

 

Family Mediation
I am a family Mediator as well as a Solicitor. We are the only Mediation service based in East Devon which has a contract with the Legal Aid Agency. It is correct to say that mediation (for the right people), is often the cheapest and best (but by no means always) way of resolving family disputes. It is important that it is supported by Legal Advice. When I am mediating, I cannot advise, but I can assist clients to get advice about the things they need to, when they need to, so that they can make informed decisions together. As a mediator, I meet with both parties separately before setting mediation up. I carry out a risk assessment and check that mediation is suitable.

 

Legal Aid
Many think that Legal Aid has been completely abolished, but this is not true. Legal Aid is still available for Legal Advice to assist people to protect themselves and their children. It is available if Social Services become involved with a family. If there is a documented safety issue it is also still available for divorce and finance and children disputes.

The rules are very complicated! There is a useful questionnaire at  https://www.gov.uk/check-legal-aid, but I am always happy to take a phone call, and I will be able to give you an idea fairly quickly.

Where there is not a documented safety issue, then families’ can get Legal Aid for family mediation. Once the mediation has started, there is also a type of legal aid that will enable those eligible to get legal advice in support of the mediation and to sort out Legal formalities after. (But it will not cover the divorce itself).
Where safety is not an issue, mediation is often a good idea anyway. I am able to mediate from here in Honiton,  Exeter, Taunton and Cullompton.

 

Next steps
Where problems are left unresolved, they can often get worse and or more difficult to resolve. Disputes between parents can also have a very negative impact upon children. It is important for them that their parents find a way forward. I offer an initial free 30 minute meeting to discuss options with potential clients. Within that time I can assess eligibility for Legal Aid. After the 30 minutes the client can go home for a think, or we can proceed with initial Legal Advice or try to set up mediation.

Don’ts first; here are 10 things not to do;

  1. Don’t use your children to get at the other person. You are both better than that. Remember, you are a role model for your children. They need to see their parents resolving problems in a sensible and constructive way.
  2. Don’t make threats to, or cause harassment to the other person. It will only make things worse. It will take longer and be more expensive to sort things out.
  3. Don’t think you are going to take the other person “to the cleaners”. That’s not going to happen. The law is about fining fair solutions. You will both get a fair outcome. There are a range of “fair” outcomes. There can be different views about what “fair” is, but the “battleground” is fairly narrow
  4. Don’t try to hide money or assets. The chances are they will be found. Your costs and the overall costs in the case will be more. (more…)