2007 Family mediation and legal aid
This page contains an outline of this report, and a summary of the key findings. Details of how to find the full report can be found at the bottom of the page.
Title
Legal aid and mediation for people involved in family breakdown.
What is it about?
One of the public service agreement targets of the Department for Constitutional Affairs (DCA), which funds legal aid, is to achieve earlier and more proportionate resolution of legal problems and disputes. As part of this policy drive, DCA policy is to promote the use of family mediation to resolve disputes when couples split up. Those eligible for legal aid are required to have a meeting with a mediator to assess whether mediation is suitable for them. There are exceptions in cases of domestic abuse, or where the travel time is too great. However, only 20% of people funded by legal aid for family breakdown (excluding those exempted for domestic abuse) currently opt for mediation. The report examines the reasons for the low take-up, and makes recommendations to the Legal Services Commission to help increase the number of mediations.
Who did it?
The National Audit Office (NAO) prepared the report. The NAO is an independent body, with responsibility for scrutinising public spending on behalf of Parliament. The findings are based on an eighteen month period, from October 2004 to March 2006. The report was published on March 2nd 2007. The NAO sent short written surveys to 4,000 people who had received legal aid for family breakdown cases, asking where they had first sought advice, whether their adviser had discussed mediation, and their reasons for choosing or rejecting mediation. The NAO also surveyed mediators for their opinions, and analysed data from the Legal Services Commission (LSC).
Key findings
- Around 20% of people funded by legal aid for family breakdown cases currently opt for mediation (this excludes cases involving domestic violence)
- 33% of those who did not try mediation said that their adviser had not told them about it
- 42% of those who were not told about mediation would have been willing to try it had they known about it
- The average cost of legal aid in non-mediated cases is £1,682, compared with £752 for mediated cases
- Mediated cases are quicker to resolve, taking on average 110 days, compared with 435 days for non-mediated cases
The report makes several key recommendations to the LSC, including:
- The LSC should actively promote mediation to solicitors and their clients
- Contracts between the LSC and solicitors should reflect a presumption that mediation should normally be attempted before other remedies are tried
- The exemptions from using mediation should be reviewed
- The LSC should consider paying for both parties to use mediation where only one party is eligible for legal aid
Comment
The NAO’s brief is to save public money, and the evidence it has produced indicates that there is certainly money to be saved in this area. The data it has collected makes it clear that only a small proportion of people going through family break-up choose to use mediation to resolve their disputes. The evidence also points to the fact that many legal advisers fail to give their clients information about family mediation, and, indeed, the NAO suggests that there is a financial disincentive to do so. Responses to the NAO survey suggest that many people would consider mediation if they knew about it. Mediated cases appear to cost the legal aid fund about half the amount that non-mediated cases cost. The NAO concludes that if 14% of the cases that proceeded to court had been resolved through mediation, then the taxpayer would have saved £10 million a year.
However, this is not the whole story. There is one key issue which the NAO does not really address. Comments from those replying to the NAO survey suggest that a cheaper, quicker dispute resolution process is not the only factor in their decision. “When there are two people who can’t stand each other,” wrote one survivor of separation acrimony, “no amount of talking will resolve matters.” People’s decisions about how best to sort out contentious issues post-separation are not wholly based on speed or cost. The NAO summary of its findings, and its recommendations to the LSC, do not refer to this ‘soft’ data, and therefore they ignore the human factor.
March 2007
