Existing court powers must be used to boost mediation numbers: NFM
NFM publish submission to LASPO post-implementation review
Ministers must take hands-on action to get family courts to more effectively use the powers they already hold. That is the main thrust of National Family Mediation's submission to the government's Post-Implementation Review of the 2014 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). NFM says:
"We believe that boosting mediation numbers would not be difficult since court powers already exist which would help meet this aim."
The charity's CEO, Jane Robey, says:
"We know government thinking is completely dominated by Brexit. But no new legislation is needed: just the proper enforcement of existing court powers. And we know the purse-strings are tight, but this type of action would cost nothing.
"Stronger monitoring and a more proactive government approach to enforcement would, we believe, transform the situation and avoid the embarrassment for Ministers of their current policy dying on its feet."
The submission outlines a range of negative impacts that have been felt by family mediation providers as a result of the LASPO Act, and proposes a number of remedial actions that could help the government improve the take-up of family mediation. Central to these are a series of measures to strengthen the proactive involvement of courts in encouraging separating families to use mediation, including:
- Courts should always properly check the respondent has been approached, rather than allowing a situation where forms have simply been signed to smooth the applicant's route to court.
- There needs to be a court focus on promoting and supporting mediation, and ensuring that all applicants and respondents to court have at the very least attended a MIAM before they have an appointment with court.
- The charity's experience is that magistrates, judges, and court officials are bypassing the necessary process of getting the C100 and Form A paperwork signed by a mediator at a MIAM.
- There is no evidence that courts have altered their practice and embraced the revised procedure rules or child arrangements programme that would prove pivotal in transforming the culture of litigation in divorce in this country.
The charity believes that an increase in the take-up of family mediation can help achieve three of the four objectives the then-coalition government had when establishing LASPO:
- To discourage unnecessary and adversarial litigation at public expense;
- To make significant savings to the cost of the scheme; and
- To deliver better overall value for money for the taxpayer.
NFM's submission also includes a number of suggestions for government action which would require legislative or funded measures, including:
- Provide some financial incentive for solicitors to refer to mediation - at present the main incentive they have is to find evidence of domestic violence to fund an application to court.
- Review and increase Legal Aid rates for mediation providers, in order to avoid the supply of mediators drying up completely.
- Introduce a system to register mediated agreements with the court so that if they don't work and clients want to go to court next rather than review in mediation the courts have a non-adversarial starting point.
- Reinstate some form of funding to ascertain the willingness of the respondent.
- Fund MIAMS for all parties, as skilled triage which will save money further down the line in contested proceedings.
- Provide Separated Parents Information Programme (SPIP) for all applicants in children's matters including additional components about the range of help available before expensive court proceedings commence.
- A national information campaign regarding different pathways available following family breakdown – along the lines of the MOJ's 'Family Mediation First' campaign.
For more details of NFM's submission, click here. For the submission itself, click here.
9/9/18