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Fall in mediation applications for family disputes

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This morning, Justice Minister Lord McNally told Sarah Montague on the BBC’s Today programme that it was too early to say whether government cuts to legal aid have led to a fall in applications for mediation in family cases. Pressed by Ms Montague to say how long before such a conclusion could be safely reached Lord McNally stumbled.

The fact is that prior to legal aid being removed for divorce and disputes over child custody and access (residence and contact), applicants for legal aid for court representation were forced to go to mediation. Mediation was not a willing choice for those people. It was a hoop they had to jump through to get legal aid for Court.

It is not surprising then that government figures provided to The Guardian under the Freedom of Information Act show a 47% drop in mediation applications.

The Government’s much vaunted plan to replace Court with mediation, whilst well meaning, is misguided. In the same period applications to Court have risen even though many people are now without legal aid and therefore have to represent themselves. Why is it that even though legal aid is still available for mediation but not available for Court representation, applications to Court have increased?

The fact is that the vast majority of people sort out the issues following a relationship breakdown themselves. However there is a small but significant minority who either cannot or will not resolve their differences.

These people do not communicate effectively; do not trust each other; and often cannot see beyond their own firmly entrenched positions. In theory they may be suitable for mediation. In practice they are a million miles away from choosing mediation even if it is available free of charge.

When listening to him this morning I asked myself, why did Lord McNally not provide this analysis to the listening and voting public? Do the MOJ officials not brief their minister? Is it better for him not to know the facts? Well he gave a very good impression of someone out of his depth. In his place I would be going back to HQ and getting all the facts before I went back on the Today programme.

In the meantime the public may gradually realise that removing legal aid for divorce and disputes concerning children exposes many vulnerable families to a risk of harm by removing the services of skilled, experienced and expert family lawyers previously available via legal aid.

By Mike Devlin, Partner & Head of family law department