The Legal Aid Sentencing and Punishment of Offenders Act (LASPOA) 2012 sought, amongst other things, to reduce adversarial litigation at public expense where it was not needed (Justice Select Committee, 2014). It would make sense, given that objective, to put effort into encouraging alternative dispute resolution (ADR), such as mediation. This intention is most closely attached to the objective put forward by the Ministry of Justice (MoJ) that couples who are in dispute over a private family law matter should be encouraged to settle said dispute as early as possible, without having to proceed down the court route. This essay, therefore, will argue that in the scope of private family law, LASPOA 2012 has failed in its intention to promote ADR such as mediation.
In removing family law from the legal aid catchment, it was hoped that couples would be drawn to ADR in the first instance. In actual fact, the number of people using ADR plummeted (Justice Select Committee, 2014). The main reason for this could well be rooted in the cancellation of legal aid; in the past, in order to qualify for legal aid, it was compulsory for people to attempt mediation. When legal aid was removed, so was the mandate. The idea that the continued availability of legal aid for mediation would encourage people to attend mediation in lieu of going to court was misguided, as figures show a fall of 56 per cent post LASPOA 2012, accompanied by an estimated underspend of £20 million on mediation. In this respect, LASPOA 2012 did succeed in its aim to make significant savings in the cost of legal aid.
The influence of lawyers themselves is not to be understated. Where adversarial litigation is a possibility, there is potential to make money. Good business sense has caused lawyers to step away from informing clients that legal aid is available for mediation and the number of lawyers involved in publicly funded mediation has decreased dramatically. This has contributed to a wider issue of education. If people are not aware of ADR, then people cannot use ADR.
With the reduction of available legal aid, there can be a problem with access to justice based not just on economics, but also on education. To pursue a legal claim as a litigant in person, as many people now have to, can be a complicated affair. As Sir James Munby said: “The first time many people bump up against mediation is when they go into the court office and get the 20 page form that spends 12 pages asking them incomprehensible questions about [Mediation and Information Assessment Meetings (MIAMs)]”.
The MoJ have made efforts to improve the falling use of mediation, including the setting up of a panel of experts to help improve the practice, looking into reviewing the management of the mediation sector, and perhaps most importantly, scaling up the awareness campaign in order to better educate the general public as to the availability of legal aid for mediation, and what mediation actually is.
With reference to the objective that LASPOA 2012 set in the intended aim of encouraging increased use of ADR, such as mediation, it is still held by the author that LASPOA 2012, in fact, failed in this aim, and actually achieved the opposite. Factors introduced post LASPOA 2012 may have provided a basic mitigation of the failing, but there is still a long way to go to getting mediation to a pre LASPOA 2012 state.