When the government sought to reduce civil legal aid expenditure by taking specific areas of law out of scope, it comforted itself that disputes could still be solved, but more cheaply, by the increased use of mediation. Since then the news has consistently reported an alarming reduction in the use of mediation, particularly family mediation. What’s going on? The Commons Select Committee is poised to gather evidence addressing the impact of changes to civil legal aid under LASPO. One of the questions is specifically: What effects have the LASPO changes had on the take-up of mediation services and other alternative dispute resolution services, and what are the reasons for those effects? Written submissions can be made here https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/laspo/
The governmental steer towards mediation began before LASPO. Successive initiatives including the renewal of the Dispute Resolution Commitment which encourages local authorities and agencies to use ADR to resolve disputes more cost-effectively have been promoted as a solution. As the number of Litigants in Person grows, it seems that more needs to be done to magnetise mediation if it is to relieve and provide an attractive alternative to the civil justice system.
One recurring difficulty for those in a dispute with limited means, is the availability – or lack of it – of free legal advice. All pro bono agencies are overwhelmed with huge increases in the number of people seeking assistance. The Bar Pro Bono Unit reports an increase of 78.5% from 2013 in the number of applications received for assistance. Without legal advice not only does the LIP not know the strength or weakness of their case, they don’t know the process of mediation and whether it could help. Where they do know about mediation, they have expectations which, in the absence of legal help, remain unchecked.
When government departments are deciding whether or not to use mediation, they generally have the benefit of legal advice. It will be interesting to see whether the Select Committee consider the availability of legal advice to be a factor in the use or lack of use of mediation. Perhaps the need for advice should be highlighted in any written statements to it.