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The Ups and Downs of ADR Policymaking

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.

This is the story of how a law intended to increase mediation use led to a dramatic drop-off in mediation and what was done to try to fix the error.

In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act came into force in England and Wales. The law cut legal aid, which formerly had been available for nearly all civil cases. In family law, legal aid for court cases was now only available for cases that involved allegations of domestic violence or child abuse. However, government funding for mediation of family case was increased by ten million pounds.

At the time, a Ministry of Justice spokesman said the policy for family disputes was to encourage mediation over court, because mediation could be “quicker, cheaper, and less stressful” than court.

Despite the extra funding for mediation, once the Legal Aid Act began the number of family law mediations in England and Wales suffered a significant downturn. It appears that when the government cut access to legal aid solicitors, they cut a crucial link in the mediation process. The legal aid solicitors who were no longer available to parties had been an important part of the mediation process, providing referrals and encouraging parties to seek out mediation.

The differences following the legal aid changes were stark. From April-June in the year before the Legal Aid Act, 7,381 couples attended mediation information and assessment meetings. During the same period in 2013, that number had fallen to 3,854, a 47% drop. Following those meetings, the number of couples who actually entered mediation fell by 26% during the same period. The government’s intent had been turned on its head.

To put things right, the government implemented the Children and Families Act in April of this year. This act requires family law parties to attend a mediation information and assessment meeting before they can apply for a court order. While comprehensive data is not yet available, the largest family mediation provider in England and Wales, which has 500 community locations, reports that there has been a significant increase in the use of their services in 2014. Use of mediation in some service areas have gone up as much as 30-40% over last year.

Obviously, this story is still unfolding. It remains to be seen whether the new law will have the intended impact of increasing mediation use. However, this multi-year saga is an interesting example of how a well-intentioned policy can have unintended consequences in a complex system that is not clearly understood.


Mary Novak

Mary Novak joined Resolution Systems Institute (RSI) in 2012 as Resource Center Director. In this role, she gathers, writes and publishes information on RSI’s key online resources: RSI’s Court ADR Resource Center; RSI’s Just Court ADR blog; and RSI’s monthly e-newsletter, Court ADR Connection. She also responds to inquiries concerning court ADR from… MORE >

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