Mediation 2 years on

It occurred to me recently that I qualified as a Family Mediator in March 2012 and I was fast approaching my second anniversary. I have reflected on those two years, the work that I have undertaken as a mediator, the changes that have occurred, and those that are about to occur.

At the outset, I must say that I have found acting as a mediator hugely challenging and greatly rewarding. To see the case from a neutral standpoint has given me a new perspective on my own ‘Solicitor’ cases and on occasion the ability to stand back and not give legal advice has been challenging but ultimately eye opening. I have also seen the benefit to parties in talking through matters directly, and the realisation, in many cases that the differences between them were far less than either understood or expected.

For all the positives, there remains a degree of sadness. When undertaking my training I was taken aback by the knowledge and professionalism of my fellow course members and it is hugely disappointing that this pool of knowledge and experience appears to remain largely untapped with figures showing a year on year decline in mediation. I am reminded that 2 years ago when training, mediation was seen by the newly formed Coalition Government as the panacea for separating families and the remedy to their intended legal aid cuts. Two years on and this bold new venture has a real possibility of failing spectacularly.

Why has this happened? Really the answer was staring everyone in the face but no one saw it. Prior to the legal aid changes the vast majority of mediation cases were referred to mediation from Family Solicitors. With the end of legal aid many legal aid dependant law firms and law centres have closed. The Government has put nothing in place to replace this vital area of signposting for mediators simply meaning there is no one left to make the referral.

Accordingly mediation hasn’t been given the opportunity to take up the slack, but if they have not, what has?  Anecdotally, and perhaps unsurprisingly family disputes remain as commonplace as they ever were, but it’s just that lawyers are less involved now. This has had a direct impact on local courts: One has actually recorded a significant spike in applications following the April 2012 changes whilst another appears to have given up all together on speaking to parties, has replaced phone numbers with a call centre and a family help desk with a telephone in its reception (and that is only to make an ‘emergency appointment’). One might suggest that this is a reaction, in part, to the increased number of litigants in person and the actions of the court in no way serves the public. Whatever the arguments it seems clear the system isn’t working and is in need of change.

We now look forward to future changes to the courts and the court’s expectations of family mediation. It seems clear that there will be a requirement for any applicant to have attended a mediation information meeting prior to issuing court proceedings and with a single family court, signposting to mediation services will be expected far more than they currently are.

That said, there appears little in the way of joined up thinking between CAFCASS, the courts and local mediators with single practitioners taking the lead locally in contacting the courts. This cannot be the way the government expects the system to operate going forward. Furthermore it seems clear that mediation providers have been hit severely by the downturn in mediation and one wonders how many qualified and experienced mediators will remain once the new system is agreed adopted and working. There is no point in making mediation the first port of call if there is no one left to help.

This article began with me looking back over the last 2 years. It seems much has happened in that time, but a great deal of it has had a negative impact on family mediation. It seems most uncertain where we will be in another 2 years’ time and whether there will be anyone left whatever that system is!

 

Christopher Lloyd-Smith