I attended the Westminster Legal Policy Forum meeting this week at which the Legal Aid, Sentencing, Punishment of Offenders (LASPO) Bill was discussed. I just had to google ‘LASPO’ to get the full title correct. And I don’t feel bad about it. Even Jonathan Djanogly himself didn’t get it right when he addressed the audience.
Our legal friends in the room (who made up the majority of the audience, in fact) ensured they continued to jump up and down about the impeding withdrawal of legal aid for private law. Mediation may have been mentioned once or twice, but in the light that government has put more (but not new) money aside for mediation.
Which brings me to my first point – this is not new money. This government has been very hesitant to explain how this money will be used. It is slow to add that this £10m and the £15m which came before it will only contribute to public funding (legal aid) for mediation. This additional money ‘put aside’ for family mediation will not fund the infrastructure, support, framework, building of the trainee and mediator base, professional practice and supervision or regulation of the profession. It will only fund mediation providers to conduct an increased number of mediations for those eligible for public funding. The only way providers are able to access this money is through their Legal Service Commission (LSC) contracts.
The issue, which seems ironic, is that mediation providers are under increased scrutiny from the LSC about who they deem as eligible for public funding. The criteria for eligibility has been narrowed considerably, especially that mediation providers now have to ensure that there is adequate evidence on file to support this. This sounds reasonable enough, however, mediator discretion is ruled out completely, as is the fact that the majority of clients do not have easy access to these kinds of records and if they do, it takes them an age to present them to a mediator for assessment – at which point it might be too late to even attempt mediation.
The LSC itself at one the recent mediators conferences could not answer (and did not attempt to in some respects) about 25% of the questions put to them by mediators on eligibility, evidence and the recent LSC audit procedures. It was confirmed that practices of LSC auditors differed depending on which part of the country the mediation provider was located. How on earth are mediators supposed to work towards LSC standards for delivery when the LSC doesn’t even know what these standards are!
The only way therefore mediation providers will feel the effects of the ‘increased’ financial support from government is if they can access a greater number of clients who a) attend the initial information meeting and meet the eligibility criteria b) are willing to mediate c) receive a successful outcome. But wait, there’s more. Which brings me swiftly to my second point.
Once legal aid for private law is withdrawn, solicitors will not be obligated to refer any client to a mediation information meeting (called a funding code referral). This compelling route will cease to exist, unless of course, there is goodwill between local mediation providers and solicitors who continue to cross-refer clients. However, mediation providers currently receive S29 referrals on which they conduct willingness tests to which quite a significant amount of income from the LSC is attributed, especially if they are doing larger volumes of this work. Once this falls from scope, mediation providers will no longer be receiving these types of referrals from solicitors and therefore the willingness test income will cease to exist. Of course this is going to mean that a stable income source for mediation providers will disappear, obviously to their detriment. This, in turn will mean a loss of resources, including mediators, and less and less ability to function. We could potentially see a handful of mediation providers closing their doors to the public.
This brings me back to the LSC and my third point. On a more personal note, Never before have I experienced such poor contract management in all of my project management life. I have yet to hear a positive comment about the manner in which this contract is managed. Even the structure just boggles my mind! With this as a backdrop, I know of mediation providers that are in deficit to the LSC by as much as £25k and goodness knows how long the LSC has gone without adjusting the level of payment to allow it to get this out of hand!
Off the back of this, a majority of mediation providers have been caught out so badly by the mis-managed audit process, that they have been required to pay back between £3k and £40k to the LSC. This is a clawback mostly on failure to meet the eligibility procedure i.e. lack of evidence on file. However, in the LSC contract it was made very clear early on that mediator discretion will be taken into account i.e. if a mediator sees the evidence and is happy that it meets the criteria, it would not be necessary to ensure it is on file.
Now imagine a local mediation provider, a charity in its own right for instance and one that does not have its costs absorbed by a larger firm. The provider is in deficit to the LSC. £25k down. The provider has an audit. The LSC states that it is going to clawback another £25k from the provider due to lack of evidence on eligibility. On top of this the local authority has cut its budget in half to ensure it is only delivering the most integral services required by the community, and the budget to subsidise the mediation provider’s clientele is cut by 70%. A further loss of funding to the local mediation provider. The provider has a number of contingencies besides closing. One of these is that in order to survive it has to now put all those costs associated with income loss onto the privately paying client. This means a hike in fees, impacting the very people they are trying to help – the client and his / her family. However, this is not even enough to cover the deficit to start with.
The withdrawal of legal aid is going to help the mediator as much as it is going to help the solicitor. And that is not much. Although legal aid for mediation is set to increase (only by increasing individual providers local contract payments), there is still no mention of supporting family mediation infrastructure – particularly for the voluntary and community sector (VCS) delivering mediation, who rely on grant funding to survive. National Family Mediation is the largest and most prominent provider of family mediation. It has lobbied government on every given occasion, encouraging it to further explore supporting and underpinning this ‘cost effective and less adversarial approach’. The government should stop swooning and put its money where its mouth is! We want tangible and financial directives. However, not a cent has been forthcoming to support the development of mediation or how we may make the service more accessible to clients who have suffered through the recession and find themselves just above the threshold for legal aid.
Aside from legal aid, the government putting in place the pre-application protocol to pre-empt the outcome of the Family Justice Review may have its perks, but it certainly has not worked according to their master plan. My fourth point brings to light the fact that although this has driven traffic to mediation providers which has increased referrals as well as the initial information meetings, many of these cases do not proceed to mediation due to a number of factors:
- Clients are of the mindset that ‘their solicitor sent them to get an FM1 form so that they could continue to court’. There is little chance of convincing the client to attempt mediation as they have their sights set on the courtroom.
- Client 1 comes along to the introductory information meeting and is quite willing to continue with mediation. However, client 2 will not be engaged and refuses to attend an initial meeting. Mediation cannot progress without the voluntary agreement of both parties. Therefore client 1 is free to receive an FM1 form which allows him/her to continue along the court route
- The nature of the clientele for mediation is changing. Many mediators have stated that their cases are becoming much more complex, often involving outside agencies like social services or the police. There is an increase of clients involved in domestic violence. Frankly, some of them are not appropriate at all for mediation whether that is to do with the type of client, the timing or the complexity of the case. If these cases cannot be mediated, they proceed to court in any event.
Fifth point is that many people still see family mediation sitting cosily within the Ministry of Justice. However, the family agenda sits across government departments. We are yet to see issues affecting families which are inextricably linked, find some kind of cohesion across government policy.
Family mediators, particularly those at National Family Mediation deliver the Separated Parents Information Programme (PIP), which is commissioned by Cafcass (who sit within the DfE). The PIP is a 4-hour court-ordered course designed to help separating parents keep the focus on their children. Family Mediators work very closely with Cafcass officers, as both work with children involved in family breakdown. The only government department who has the funding to assist the VCS sector is the DfE – but all of their grant funding went to organisations who promote the relationship support agenda, without a thought into how to support families in the midst of or having been affected by breakdown.
The Department of Work and Pensions is no better. Child maintenance is governed by this department. But when a family is splitting up, a mother does not consider her finances to be separate from her children – quite the contrary – all of these issues will be bundled into one mess to be sorted out. If that’s how families view it, why can’t government see it from the same perspective? And what about all the presiding health issues that come with family breakdown. How many people see their GP to be treated for depression, but when it comes down it, the catalyst is more often than not relationship issues. Is the Department of Health aware of this fact?
Family mediation is here to help clients address all the issues relating their divorce and separation – their finances, their health, their children, their arrangements for the future. Government departments need to stop agreeing to ‘talk to each other’ and actually produce some sort of cohesive understanding and appreciation for how the family operates.
In conclusion, we wait to see how the government’s response to the Family Justice Review will pan out. My guess is that the government will pay lip service to the recommendations but struggle to find the funds to actually support the changes that are so desperately required. On the one hand, it continues to support and offers tremendous tribute to the idea of family mediation, but on the other hand, gets ready to pull the rug from underneath mediation providers, legal experts and advisors through use of the LASPO bill. Cost cutting has become the essential driver, never mind the thousands of families who suffer at the hand of ‘progressive thinking’ and ‘positive change’.
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