Early legal advice the best solution for divorcing couples, not compulsory mediation
The most effective way to get couples into mediation is to provide them with early legal advice, the Law Society of England and Wales said today as the government announces mandatory mediation proposals for divorcing couples.
“The best way to get couples into mediation is to provide them with early legal advice, but the government has not taken this on board,” said Law Society President Lubna Shuja.
“Mediation can be a vital tool for resolving many family disputes, but compulsory mediation in family cases is not a substitute for funded early advice, which can provide people with a reality-check and confidence that mediation is in their best interests.
“The risk is that compulsory mediation could force the wrong people into the process, at the wrong time and with the wrong attitude for it to be effective. They need to be ready to mediate and have a full understanding of what the process will involve.
“The government needs to collect long-term data to be able to evaluate whether the mediation voucher scheme is keeping cases out of court that would have gone to court anyway. Otherwise, it is not fulfilling its intention of reducing court backlogs.
“We must also ensure that compulsory mediation does not give rise to serious concerns that vulnerable individuals and their children might be further exposed to risk or taken advantage of.
“The Domestic Abuse Act has been a positive step forward in the government recognising coercive and emotional control can be a significant aspect of abusive behaviour.
“There’s a danger that without early advice, a mandatory mediation process may fail to recognise these victims and force them into a process that empowers their abuser.
“Although the current plans for mandating mediation would exclude cases where there is a history, or allegations, of domestic abuse, early legal advice would help make sure previously unidentified cases are not put forward for mandatory mediation.
“In some instances, the nature of coercive control in domestic abuse will make this difficult to spot.
“Early legal advice helps ensure safeguarding issues are flagged and, if necessary, such cases are removed from the compulsory mediation track.
“It would also mean some cases are resolved through solicitors’ correspondence even more quickly and cheaply without requiring mediation and would persuade couples of the benefits of engaging constructively.
“Early advice is highly effective in keeping cases out of court, and in maximising the appropriate use of mediation.
“The money being put into mediation would deliver far greater value to the taxpayer if accompanied by funding for proper early advice.
“We will be responding to the government’s consultation in full in June.”
Notes to editors
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 31 March 2013. Until 2012, legal aid was available for almost all areas of law, except for specified exceptions. Areas removed from scope included private family law (divorce, custody battles), most clinical negligence cases, most employment law, non-asylum immigration law, some debt and housing cases and most welfare benefit issues.
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