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Government not doing enough to support family mediation

Flagship policy needs more active engagement with lawyers and the public

11 November 2013

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The government is failing to support divorcing couples, a leading mediator has said as he urged the Ministry of Justice to deliver on its flagship family mediation policy.

Family disputes have mostly fallen out of the scope of legal aid following the coming into force of LASPO in April, but public funding remains available for divorcing couples opting to go to mediation.

In a letter to Lord McNally, mediator Marc Lopatin (pictured) says the number of couples inquiring about formal mediation fell 50 per cent since LASPO, and the number of couples entering into the process was down by a third.

This "alarming fall" in referrals to family mediation came to light after Lopatin made a freedom of information request earlier this year.

In his letter, seen by Solicitors Journal, he urges Lord McNally to address "market failures that characterise family law services for all but the wealthy".

Lopatin, who runs LawyerSupportedMediation, says even forthcoming changes seeking to make mediation initial assessment meetings (MIAMs) compulsory only apply to applicants.

Of the 300,000 families that separate every year, very few opt for mediation, although it is believed to have a better 'success' rate than litigated divorces - two in three mediations end in agreement.

For most people considering a divorce, solicitors remained the first port of call, but the cost of legal advice was a major obstacle to people seeking professional assistance, according to Lopatin.

He said fixed fees had a role to play in encouraging potential clients to see a solicitor, who would be able to act as a conduit to affordable mediation.

"Legal services are priced out of the pocket of most people; if you encourage lawyer-supported mediation, through it you will bring legal advice within the reach of people on average salaries," he said.

Mediation is one of the few areas within family law to remain within the scope of legal aid but the numbers uncovered by Lopatin suggest that it has failed to make an impact within the legal community.

One reason, according to some observers, was that clients, aware of the cuts to legal aid, believed that it would not be available at all and self-filtered out of seeking legal advice altogether, not realising that mediation is still covered.

"The MoJ can't afford to let mediation fail. They made it their flagship policy after removing legal aid for nearly all family disputes. They need to embed it in everyday life," Lopatin said.

The challenge for the MoJ is that mediation doesn't 'sell', but Lopatin believes the MoJ has "huge convening power" and that Lord McNally should engage with influential groups such as Mumsnet or financial advice news services to help educate the public.

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Marriage & Civil partnership