1.1 The objectives underpinning this research were to determine:
the relative benefits and cost effectiveness of contracting for the provision of publicly funded and quality assured family mediation services through different supplier arrangements;
the most effective quality assurance and contracting arrangements for the delivery of publicly funded mediation services;
the level of quality assured legal advice necessary to support publicly funded family mediation and the most cost effective arrangements for providing it;
the relative costs/benefits, both for the assisted person and the taxpayer, of the provision of publicly funded mediation and supporting legal advice compared with the current arrangements.
2.1 We observed huge variation in the activity levels of mediation suppliers. A relatively few suppliers undertake the bulk of mediation work, with a long tail of suppliers doing very little. The advent of public funding did not have an immediate impact upon case volumes. Section 29 of the Family Law Act, requiring potential legal aid applicants first to explore the mediation option, did lead to a significant increase in the number of cases referred to mediation providers - and, therefore, in the number of mediation 'intake' interviews. However, even section 29 resulted in only a modest increase in the number of mediation starts.
2.2 At the beginning of the pilot the so-called 'not-for-profit' services undertook the bulk of the work. In the course of the pilot the Legal Services Commission has contracted with an increasing number of mediation suppliers and the balance has shifted to a point where solicitor providers of mediation contracted to the Commission now outnumber not-for-profit suppliers. Despite this, the bulk of the workload is still undertaken by the not-for-profit sector. Of our database of 4,593 case monitoring forms completed by providers, 86% had been referred to not-for-profit services. Nearly all court referrals and voluntary referrals tended to go to the not-for-profit sector. The profile of cases referred under section 29 of the Family Law Act 1996 was somewhat different: 41% of these cases were referred to solicitor providers of mediation.
3.1 85% of cases referred to mediation providers involve disputes about the children - generally speaking, about residence and/or contact arrangements. 33% of cases have financial or property disputes as one component. Children disputes tend to dominate the caseloads of not-for-profit services. Solicitor mediators on the other hand tend to be referred both categories of dispute, but with a preponderance of financial issues.
4.1 Members of our panel displayed high levels of mistrust of their former partner, and they also tended to overestimate the trust in which they themselves were held. There was likewise scepticism about the former partner's commitment to making progress in resolving the issues in the case: 57% said that their former partner was not keen to resolve matters. 59% believed that their former partner was 'not at all willing to compromise' (only 11% said this of themselves).
5.1 For the most part solicitors claim to be supportive of mediation, but they tend to have a much more limited perception of its scope than is held by most mediators. All solicitors say they adopt a conciliatory approach to family disputes, but they say that few clients can be persuaded to try mediation. Unlike most mediators, solicitors do not accept that mediation is intrinsically superior to bilateral negotiation by lawyers.
6.1 Following the implementation of section 29, the balance of mediation providers' workloads has shifted, 'intake' now taking up a far larger proportion of their time. The section 29 clientele also presents particular problems of administration, with more staff time having to be given over to trying to arrange appointments.
6.2 Client understanding of the process is variable, and tends to be more limited amongst those referred under section 29. Most of the latter group appear compliant, but not obviously enthusiastic. This is consistent with the evidence that most second parties who are not under the section 29 obligation choose not to attend. Most of the client reservations expressed at the intake meeting focused, at least outwardly, on the presumed negative attitude of the other party. Most people seemed to accept that mediation was a good idea in principle; they were less sure that it would work in their case.
7.1 Prior to the introduction of public funding for mediation, mediators did not in general trouble themselves with the question of whether cases referred to them were 'suitable'; if the parties wished to engage in mediation, that was generally deemed sufficient evidence of suitability. The position is now more complicated because some people are effectively required to attend a mediation intake appointment. At present the rate of 'conversion' appears to be of the order:
Since April 1999 there appear to be, on average, some three to four 'intakes' (involving one or both parties) for every mediation start. There is huge variation in the conversion rate as between different mediation suppliers.
8.1 People's experience of mediation is positive on the whole. There is a tendency for the not-for-profit sector to score higher on questions relating to children issues, and for the for-profit sector to score higher on financial disputes (most notably in respect of mediator understanding). 'Fear of violence', whilst featuring in a great many of these cases, appeared for the most part to be overcome in mediation. Women's responses to the mediation experience were, on the whole, slightly more positive than those of men.
8.2 Mediation on children issues drew quite high levels of customer satisfaction (35% found mediation 'very helpful'; a further 35% found it 'fairly helpful'; 51% thought the mediator had understood their situation 'very well'; a further 27% thought the mediator had understood 'fairly well'; 71% said that they would recommend mediation to others experiencing a dispute about children). Responses to mediation on finances were also positive on the whole. Again, most of those who had experienced mediation thought that it had been helpful. Most would recommend it to anyone else experiencing the same kind of problems.
9.1 In approximately 50% of cases experience of mediation (as distinct from 'intake') is confined to just one mediation session. The bulk of the remaining cases involve two or three mediation appointments. This pattern probably reflects the predominance of 'children only' mediations, most of which seem to involve just the one meeting.
9.2 Compared with earlier studies it appears that mediators now bring a brisker and more 'professional' approach to their work. This is more strictly focused on the tasks in hand and it appears, for each session, to have a definite rationale, at least for the mediator. There is a higher degree of formality, particularly in the use of documents and in more explicitly structured openings to each mediation session. This greater degree of formality may be a reflection of the Commission's franchising requirements. At the same time there remains wide variation in the operating practices of different mediators and different mediation providers.
9.3 Our tapes revealed a lower level of conflict than was apparent from earlier recordings supplied by the not-for-profit sector. This could reflect tighter control by mediators, but it probably also reflects a change in the mediated population and, perhaps, a problematisation of low conflict divorces. The nature of the mediation process is strongly influenced by the issues under discussion. Mediation on property/finance is so different from mediation on children issues that it is not clear that the skills required are of the same order.
9.4 Family mediators are expected to remain impartial as between the parties and neutral as to the outcome. They are also supposed, as far as is possible, to redress imbalances of power between the parties. The logical inconsistency between these objectives, and the incompatibility with others, such as the protection of the child's welfare, has been explored elsewhere. On the evidence of these tape-recordings we can say that clients almost invariably respect the impartiality of the mediators. Mediators generally refrain from directly expressing opinions, but certainly in child-related disputes they impose 'parameters of the permissible'. These vary somewhat between providers, and between mediators.
9.5 There were no cases where children were included in the mediation session, or where the mediator saw the children. However, the children's perspectives were routinely discussed. Mediators varied in the extent to which they focused on the children's futures, or treated these as incidental to reaching an agreement between parents. One change from earlier data is that mediators seem able to make a clearer separation between what might be good for parents and what might be good for children, and to discuss these as separate issues.
9.6 The Commission faces the problem of achieving its goals through a contract mechanism which is inherently ill-adapted to important discretionary issues in the delivery of mediation. A contract can require particular standards of accounting, systems of offering appointments, and staff qualifications, but it will always be difficult to know whether staff are doing quality work other than by reference to these very indirect measures. [Endnote 5]
10.1 By and large the panel response to solicitors was even more positive than its response to mediation. There is clear evidence that the presentation of solicitors as aggressive troublemakers (with mediation, in comparison, as the embodiment of reasonableness and compromise) is a caricature which deserves now to be regarded as of historical interest only. Solicitors' partisanship remains, however, an important feature, and is highly valued by those facing these particular stresses.
10.2 On most 'soft' measures of approval, solicitors scored rather higher than mediators. For example, in relation to issues concerning the children, 60% (as against 35%) had found their solicitor "very helpful"; 69% (as against 51%) were deemed to have understood the problems "very well". The biggest discrepancy was on the part of male respondents, 72% of whom told us that their solicitor had understood the problems "very well" (as against 49% of male respondents who said this of the mediator). 81% of those who had had help from their solicitor about a child dispute said that they would recommend others in the same boat to use a solicitor (as against 71% of mediation customers who said this of mediation).
10.3 On financial issues, 54% had found their solicitor "very helpful" (compared with 33% of mediation customers who this of mediation in respect of financial matters). 70% thought that the solicitor had understood their situation "very well" (compared with 49% who said this of whoever mediated the financial issues in their case). 84% of the panel said that they would recommend using a solicitor to someone who had to resolve financial issues (as against 68% of mediation customers who said this of mediation).
11.1 The overall trend in the number of legal aid certificates issued is downwards. This probably reflects declining eligibility at a time of relative economic prosperity, and it may also reflect solicitors' economic behaviour in that solicitor firms may be increasingly opting for private as against legally aided work.
11.2 Our evidence suggests that public funding has not of itself increased the level of mediation activity. What undoubtedly has had some impact upon the number of cases referred to mediation is the implementation of section 29 of the Family Law Act 1996. However, when we examine the number of certificates issued in areas where section 29 has been introduced, and compare this with areas where it has not, we find that the graph of certificates issued follows an almost exactly parallel course. This invites the conclusion that section 29 has not itself led to a fall in the number of legal aid certificates issued.
11.3 We also explore mediation's impact upon legal aid certificates by reference to our panel. On the basis simply of bivariate analysis, we find that reported agreement at mediation in respect of children issues is associated with a marginally reduced likelihood of an application for legal aid. This association is even clearer in respect of financial disputes.
11.4 We also undertook multivariate analysis on the panel data in an attempt to answer this question of whether mediation had an impact upon the award of legal aid. The purpose of employing multivariate analysis in this context was to clarify and then control for important differences in the make-up of the relevant populations. We found that once everything is factored in - including age, sex, income, and the presence of children - the impact of mediation upon the award of legal aid falls to zero. It has to be emphasised that this analysis leaves on one side the potential benefits of mediation - principally the parties' satisfaction with process and outcome.
12.1 Again, we explored this question by means of bivariate and multivariate analysis. Employing bivariate analysis alone, we find that 'agreement' at mediation - whether reported by providers or customers - is associated with reduced legal costs. 'Savings' were particularly evident in respect of agreement on financial issues.
12.2 However, after controlling for all the factors which we could identify as being associated with differences in legal costs, and also having corrected for unobserved variations between informants (factors such as age, sex, income, and whether the couple had children) the impact of mediation on legal costs was not significantly different from zero. Again it is important to appreciate that achieving an impact upon lawyer costs is just one of the expectations which one might have of mediation. This negative finding is important, however, in correcting a great deal of misleading talk about the assumed impact of mediation upon the demand for lawyer services. It may be helpful in asserting the principle that mediation ought to be judged by whether it offers something of value to those couples who engage in it.
12.3 This is not to say that mediation cannot ever bring downward pressure to bear on lawyer costs. It may be able to do this to a limited extent. But savings are only likely to be achieved if mediation is more effectively integrated within the early stages of legal proceedings.
The Commission argues that the contracting mechanism allows for the exercise of discretion, and that the specification requirements are a good proxy for quality. These include individual competence assessments, file reviews, records of supervision, and reviews of outcomes.