Mediation reduces court applications and legal costs
Mediation Intake Assessments or MIAMs are critical to disputants understanding how mediation can help them and to diverting some cases from court and settling them in mediation. Without compulsory MIAMs court applications increase, see Chronology. However, proceedings may be needed to compel the engagement of reluctant Respondents via MIAMs. Pre-issue mediation saves the most costs and referring litigants to mediation once joint costs reach 20% of value would settle another cohort of cases.
Without compulsion there is less mediation and more court applications. What we know from the National Audit Office Report into Family Mediation 2007
“Mediation is faster, cheaper and less adversarial than the courts – it is the duty of legal advisers to tell clients about mediation, but they have a financial disincentive to do so and many bypass it.” 1/3 clients interviewed by the NAO had not been told about mediation by lawyers – of which 40% said they would have tried it.
|Mediated L/A case||Non mediated L/A case|
|110 days||Duration||435 days|
The NAO concluded the Legal Services Commission should promote mediation. NAO added, “Legal Services Commission expects clients to mediate where possible but some solicitors dissuade and prevent people mediating.”
“My solicitor never mentioned mediation – I got a letter saying I’d declined it – when I asked about it I was told it was another standard letter and to ignore it”
“My solicitor wrote to my partner’s solicitor asking for mediation but they refused and said it would not work”
“The mediator tries to engage the parties but 12% of applicants (for legal aid) and 44% of their partners were unwilling to mediate”
“In Australia, NZ, Norway and parts of US and Canada, family mediation is compulsory. In UK and most of Europe it’s voluntary but encouraged. In Sweden 90% of separating couples use it.” (The NAO Report summary ends here).
The chronology above shows where there are compulsory MIAMs there are more mediations and where there is no compulsion there are less. The evidence shows compulsory MIAMs + effective screening to enforce MIAMs results in more mediated settlements and less court applications. Basically, without effective compulsion people/lawyers avoid MSo for example, when all would-be family applicants to court had to attend a MIAM, before issuing proceedings, there was a massive increase in MIAMs and mediations. Once it became known MIAMs were not being required by the courts, in breach of the rules, applicants bypassed MIAMs and mediations fell and court applications rose massively.
Why do some people say that MIAMs aren’t working?
The courts are undermining MIAMs by not enforcing the requirement for an FM1 form signed by an accredited mediator who has conducted the applicant’s MIAMs before accepting their court application, so more people go to court and stay there. The NAO reported whilst 12% of applicants won’t proceed with mediation, 44% of their partners won’t engage and avoid MIAMs, those sole MIAMs seem pointless – but may lead to mediation later if proceedings compel party 2 to engage.
Civil mediation has never had any compulsion to mediation, which is systematically avoided at the same time as people sing its praises. The Centre for Effective Dispute Resolution (CEDR) bi-ennial report for 2015 estimated there were 10,000 civil mediations in 2015 – and the Civil Justice Statistics indicated c 250,000 defended cases that year – so under 4% of those were mediated whilst costs ran out of control.
The current adversarial system is inimical to settlement – mediation is the solution for the 21st Century
People in conflict think if they don’t fight they will lose out – but the system of litigation often costs more than it is worth and makes it harder for people to park their arguments about rights, wrongs and legalities and do a deal. Litigation exacerbates conflict and mediation calms and resolves it. A modern approach based on the psychology of conflict which has developed in the latter decades of the 20th Century is required.
Mediation is based on the psychology of conflict and its structured approach creates the light bulb moment when people realise they never will agree on the evidence or legalities – but they can sort it out. Mediation facilitates this – but only if it is a systematic compulsory brake. The most fruitful time for both civil litigants to have a MIAMs is when joint costs reach 20% of value. This excludes undefended cases. It captures parties who would never engage pre-issue because they think they’ll get away with it.
Parties are beginning to get rattled about costs. The judge is wondering how to control costs. A good time to mediate. Family litigants who have previously avoided a pre-issue MIAMs may well have no understanding of how they can settle matters in mediation – and so they should have to attend a MIAMs at the 20% water-shed. If MIAMs were directed by judges for both parties at the 20% of case value stage – many people would mediate and many cases would stop right there. A brake for MIAMs at 20% of value could transform costs and outcomes for court cases and the number of cases progressing further could drop hugely at no cost to the court system, the MoJ or tax-payer.
Effect of LASPO
The NAO has said the government does not understand what influences people to go to court – and indeed the effect of LASPO was the opposite of what it predicted. Instead of spending an extra £10m on L/A mediation after compulsory referral to mediations stopped with the end of family L/A, MIAMs fell by 56% and L/A spend on mediation fell to under £9m
MIAMS must be compulsory but do not need to be free/funded by the tax-payer
Whilst having a L/A contract our L/A income has fallen from a high years ago of 60% steadily to a current low of 5%. We know that it is totally unnecessary for MIAMs to be free, most people expect to pay without question, just as they pay court and legal fees.
Litigation and Mediation should work in parallel
Compulsory family MIAMs for nearly 20 years has created voluntary take-up of family mediation – about a third of our cases now come direct, but it takes years to change public attitudes. Without a compulsory referral point for non-family cases mediation remains a relative rarity for under 4% of defended civil cases. Compulsory MIAMs at the 20% of case value point would transform this. A system where mediation works in parallel with litigation, with built in referral points between the two, would transform attitudes about DR. Perfecting a reformed system takes time and some trial and error – but we can learn from the experience of nearly 20 years of on/off compulsion for family cases. I am happy to help.
Mary Banham-Hall firstname.lastname@example.org 01908 231132 Mob: 07931 722439