Mediation, financial remedies, information provision and legal advice: the post-LASPO conundrum^*

Abstract

The near-total collapse in numbers of solicitors providing legal advice and assistance to publicly-funded clients attempting to settle private family law issues through mediation since the legal aid reforms implemented in 2013 raises important questions about how, if at all, clients in mediation can receive legal information and advice other than from lawyers in financial cases following divorce. This article explores, in a preliminary way, this aspect of mediation practice, drawing on small-scale qualitative data from a study conducted shortly prior to the legal aid reforms concerning the settlement of such cases. It explores how mediators then approached their (permissible) function of providing clients with legal information and how they dealt with cases where they felt that the proposed outcome was particularly unfair to one party or unlikely to be endorsed by a court, and asks how mediation practice – and legal practice – may come under pressure to change in this brave new world.

Keywords:

• Legal aid
• mediation
• legal information
• legal advice
• financial remedies on divorce
• family law reform

Acknowledgements

The empirical data drawn on in this article were collected during research funded by the Nuffield Foundation, an endowed charitable trust that aims to improve social well-being in the widest sense. It funds research and innovation in education and social policy and also works to build capacity in education, science and social science research. The views expressed in this article are those of the authors and not necessarily those of the Foundation. Particular thanks are due to our colleague, Hilary Woodward, who conducted some of the interviews on which this article draws and who commented on a draft of this article, and to Anne Barlow, Judith Masson, Lisa Parkinson and the anonymous referee for their comments on earlier drafts.

Notes

1. We have assumed in this analysis that one party per case is publicly funded and that all HwFM claims related to money cases.

2. A full discussion of the selection process and problems encountered during both stages of the research is provided in Appendix A to the Settlement Report (Hitchings et al., 2013).

3. See Astor (2007) for discussion of the concept of neutrality in relation to mediation.

4. Different categories of mediation supplier were used in the Davis et al. report: ‘not-for-profit’ services were staffed for the most part by non-lawyer mediators; the ‘for-profit’ sector was classified as solicitor firms that offered mediation and the ‘Family Mediators Association (FMA)’ consortia were the third branch classified in the report, operating on a ‘for profit’ basis and therefore placed with solicitors for the purposes of analysis in the report (Davis et al., 2000, p. 11). This can be contrasted with our study where there were two main categories – mediators and solicitor-mediators. The former included mediators from a variety of the mediation organisations (mediators often belong to one, two or more organisations simultaneously) and solicitor-mediators who maintained a practice in both fields.

5. Davis et al. previously identified this concept in relation to child-related disputes (Davis et al., 2000, p. 242).

6. See Hitchings et al., 2013, p. 9; See, more recently, Ministry of Justice, 2015a, Table 8, which charts the decline in proportion of divorces with financial remedy orders from 41% in 2003 to 34.7% in 2014.

7. We have used ‘directive’ more loosely than Riskin (2003, p. 20) – he distinguishes between ‘evaluation’, which simply gives the parties information, e.g. about appropriate settlement ranges, and ‘direction’, which goes further in indicating to the parties more or less forcefully that that is how they should settle the case. Indeed, in his 2003 work, he moves away from facilitative/evaluative to prefer a continuum between elective/directive as a model for describing mediator roles. Our use of ‘directive’ is more synonymous with ‘evaluative’, intended to convey a more substantive, case-specific intervention from the mediator, without any implication of pressure on the parties to adopt that line.