Rising to the post-LASPO challenge: How should mediation respond?

Abstract

Whilst mediation remains the policy-makers’ Family Dispute Resolution process of choice and the only one directly supported by legal aid, it remains a process designed for low conflict private family law disputes. Post-LASPO, the policy aimed at encouraging more couples jointly to exercise their autonomy to mediate family disputes has had unintended consequences, with those eligible for legal aid attending the mandatory Mediation Information and Assessment Meetings falling by 60% and the number attempting mediation reducing by half. At present, the alternative route being chosen is self-representation in court, with the number of private family law cases taken to court by ‘Litigants in Person’ having increased by 30%. It is also suspected that many couples are now letting things drift rather than agreeing arrangements for finances and children. Whilst Rosemary Hunter’s article in this collection has concluded that the normal market rules of supply and demand are not being applied here, this article examines whether, given the current policy reality, new models of mediation could and should be developed in order to deal more appropriately with higher conflict cases and a more diverse range of parties. Given it is clear one size does not fit all and drawing on research from ESRC-funded project Mapping Paths to Family Justice and its follow-on ESRC-funded Impact Accelerator Award Creating Paths to Family Justice, this article will examine how mediation might now respond better to the post-LASPO challenge. It will consider whether better signposted online information and assistance with separation and divorce, which includes but is not limited to online mediation are options; what hybrid models of mediation incorporating the support of lawyers and other professionals might offer and whether there is still an appetite among professionals in the new but skewed market to collaborate to address the unmet need of separating families trying to reach appropriate agreements out of court.

Keywords:

• Family mediation
• LASPO
• legal aid
• online dispute resolution
• triage
• MIAM
• screening

Acknowledgements

The author would like to acknowledge the contribution of the whole research team to the data drawn from the Mapping Paths to Family Justice referred to in this article and to the work undertaken by the team in relation to Creating Paths to Family Justice. She also thanks Professor Rosemary Hunter and Dr. Jan Ewing for their helpful comments on the draft of this article.

Notes

1. ESRC grant reference ES/I031812/1. This study was conducted between 2011 and 2014. It was led by the author as PI with Professor Rosemary Hunter, Queen Mary University London (formerly University of Kent), Dr. Janet Smithson, Senior Lecturer in Psychology, University of Exeter as Co-Is and Dr. Jan Ewing, Research Fellow at the University of Exeter and previously of the University of Kent.

2. ESRC IAA grant reference ES/M50046X/1. The academic team of the Creating Paths to Family Justice Project were the author, Professor Rosemary Hunter of Queen Mary University London and Dr. Jan Ewing, Research Fellow at the University of Exeter. This project was conducted in two phases between May–July 2015 and subsequently November 2015–November 2016.