Ok, he hasn’t. Freddie Starr has probably been nowhere near any of our mediation clients. But while it wasn’t the headline of a story in this week’s Family Law News (FLN), it may might as well have been. “Separating couples still rejecting mediation” is what FLN actually trumpeted, and is just as misleading. I’d say it’s also an implicitly anti-mediation statement. It gives the impression that mediation is being increasingly offered to clients, but they are still saying “No thank you very much”. Whereas we know that isn’t the case at all. Anyone might think that the FLN has it in for mediation.
The story behind it was a factual blog on lawyersupportedmediation’s website. It reported that, since April 2013, nationally, there has been a 51% drop in Legal Aid MIAM referrals and a 32% drop in the number of Legal Aid mediation starts. It might be a convenience for some to put the cause of this at the door of “client choice”, but the real reason may be rather less palatable.
Over the last six months, I’ve spoken to many mediators who have held legal aid mediation contracts for years. Some are faring well – particularly those who have built real relationships with their referrers. Many have seen referrals drop off the proverbial cliff. One, in London, told me that until April, on average, they received 15 Legal Aid referrals a month. Since April, this has dropped to 1. That’s one, not a typo. It represents a drop of over 95%, and is well above the 51% national figure. Why is this happening? Mediators themselves are to blame in part. Many have over-relied on referrals from solicitors for years instead of marketing (marketing? What’s that?) directly to the public. They are not the only one’s in the mix, though.
Many lawyers are no longer choosing to refer their clients to mediation. Those who used to run Legal Aid contracts had to refer clients to mediation before they could apply for a certificate. Now, without a certificate to apply for, the obligation has gone. Many are choosing to keep quiet about mediation or, worse, tell their clients that mediation won’t work for them. Instead, they are charging clients who are eligible for public funding. Even if they were not eligible, such an approach might be considered rather inappropriate. Where they are eligible, it’s likely to be a breach of the SRA code of practice. It may also come back to haunt them when one of the clients discovers what has gone on.
Family law is going through a tough enough time at the moment. A scandal involving clients on low incomes being charged by lawyers who could have signposted them to a free service is not something family lawyers need. Some of these misbehaving lawyers will be Resolution members, but whoever they are, they may want to ask themselves this: “What will my insurers say?”. At a time when families, more than ever, need us to provide a systemic approach to separation, divorce and family transitions, the opposite is what they are getting.
(For a copy of the data obtained by lawyersupportedmediation.com, please click here)
I am Stephen G Anderson. I am a professional mediator.
01473 487427 07702948410 stephen@andersonfamilymatters.com www.andersonfamilymatters.com