Thursday, October 07, 2010

Compulsory mediation: You can take a horse to water...

The Telegraph today has taken up on the indication by Justice Minister Jonathan Djanogly yesterday on the BBC radio Today programme that parents involved in private law children disputes may be refused legal aid unless they attempt mediation first. Djanogly said that: "Too often people in family breakdowns are using court as a first answer when they shouldn’t", and when asked whether the taxpayer should foot the bill for parents who go straight to court answered: "In my view, no."

The idea will, I'm sure, be welcomed, both by those in favour of mediation and, perhaps more importantly, by those who hold the purse strings. However, mediation is not, of course, the panacea that the Government would have you believe. Family mediator Lisa Parkinson has indicated that as many as 70% of mediations are successful (a figure not borne out by my own experience), which still leaves a substantial number of cases that will have to go through the courts.

The 70% figure is, of course, only for voluntary mediations - I suspect that the figure would be considerably lower for compulsory mediations. After all, you can take a horse to water, but you can't make it drink - many of those forced into mediation may simply refuse to engage in the process. Will those people still be refused legal aid because they didn't cooperate? If not then, to use another equine metaphor, that would drive a coach and horses through the system. If so, how do you judge failure to cooperate? Remember, the welfare of children is at stake here.

My other concern is that such an idea will create a two-tier system. It doesn't seem right to me that those who don't need legal aid can go straight to the courts, and those that can't afford to go to court will be forced into mediation, something they may not want to do. Means should not affect access to justice - wasn't that the whole original rationale behind legal aid?

Not mentioned on the Today programme, Mr Djanogly also said that: "There isn't enough knowledge within the court system, and I have to say lawyers, as to the benefits of mediation." A nice sweeping statement that it is easy for a minister to make, and will doubtless be accepted by most of the public. However, mediation has been around for a long time now, and there can hardly be any judge or family lawyer who isn't aware of its benefits, in appropriate cases.

Of course, the whole idea may turn out to be academic if legal aid for private law children disputes is going to be abolished anyway, the approach apparently favoured by Justice Secretary Kenneth Clarke.


  1. John, I can't tell if you've written this piece to get a reaction or if you really believe it.

    Nobody has said that mediation is a panacea - it's a process, just as DIY, round-tabling, co-mediation, phone mediation, mediation with caucusing, collaboration, round-tabling,arbitration, co-operation, court and solicitors' negotiations are. It's a good process and one that is good value. In family cases, it is usually the most appropriate process, with the round-table options next and court last (except where needed in the tiny minority of cases where there eis a point of law in dispute, or an injunction of some description is essential).

    I agree with Lisa Parkinson's figure and would suggest that it does include those who are required to attend for legal aid purposes. The success of any mediation is not just down to the mediator and the clients, but arguably to the role the solicitors play. Many don't appreciate the dynamics of family mediation and those who give their clients positional advice will often be undermining the process without realising it. Mediation outcomes are not about getting a court based outcome - an arbitrator could do that quicker and less expensively - it's about getting a better outcome. So if some mediations fail, it's not necessarily the process that's at fault.

    And while we're at it, do you honestly think that the court proccess succeeds more than 70% of the time? I'd say not, because most cases that are issued don't go to a final hearing. Not because of the wonders of the negotiating techniques used, or the insightfulness of the judges, but through the sheer terror that clients suddenly have to face up to when, after thinking their solicitors had told them they were onto a winner, suddenly their solicitor is making noises about costs and settlement. In other words, these cases setlle, but out of fear and expense, not because the clients have understood and accepted each other's points of view and compromised.

    As far as a two tier system is concerened, worry not. It's going to be mediation assessments for all- whether you are on legal aid, as now, or not.

    I agree completely with the minister that there isn't enough knowledge within the court system or among lawyers. Rocket science has been around a long time, but I don't understand it, so why should judges and lawyers understand mediation. Of course they should understand mediation from a professional point of view, but I don't really expect them to. As a mediator who works in the courts alongside judges, and as an active member in some capacity of all of my local family lawyer related committees, I know absolutely that judges have been on a steep learning curve recently and that many lawyers are facing one. Even Court of Appeal judges have been taking private mediation training in order to understand the process!

    There are many lawyers blogging about the mediation proposals, and without exception (so far as I have seen) only those who are not ADR trained themselves seem to be having a pop at them. They seem to fit into two categories: those who are worried about losing their ability to run cases through the court process and those who say they agree with mediation but clearly don't understand why ADR is usually more appropriate.

    This is actually a fantastic step for family justice and children. It may be motivated by cost but many of us understand that ethically it's the right direction.

    Stephen G Anderson
    solicitor, mediator and collaborative practitioner

  2. :-) No, I did not write the post to get a reaction. As I've already seen on Twitter, I am not the only one who does not look at mediation through rose-tinted glasses.


Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:
* They are not relevant to the subject of this post; or
* They are (or are possibly) defamatory; or
* They breach court reporting rules; or
* They contain derogatory, abusive or threatening language; or
* They contain 'spam' advertisements (including links to any commercial websites).
Please also note that I am unable to give advice.

Note: only a member of this blog may post a comment.