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32 Child & Fam. L. Q. 53 (2020)
Cracking the Code: The Role of Mediators and Flexibility Post-LASPO

handle is hein.journals/chilflq32 and id is 53 raw text is: 

Cracking the code: the role of mediators

and flexibility post-LASPO

Rachael Blakey*

Keywords:  Mediation  - LASPO   - regulation - neutrality - family - justice

In recent decades, family mediation has taken centre stage in policy concerning family dispute
resolution. The knock-on   effects of recent cuts to legal aid mean mediators are under rising
pressure to introduce  flexibility into their practices. However, mediators remain  bound  by
orthodox   approaches  dating  back  to  mediation's introduction  in the  1970s  and  1980s,
underpinned  by  the inflexible and sometimes  unrealistic concept of absolute neutrality. As a
result, it is crucial to explore whether mediator neutrality serves parties well in the modern
family justice landscape and how  mediators can adapt  to this new climate.

Drawing  on  research exploring Codes of Practice in England and Wales, this article identifies a
general misunderstanding  around  the role of family mediators as envisioned by their regulatory
bodies. It establishes a continuum of mediator functions that demonstrates  the different roles
permitted in Codes of Practice. In particular, it is argued that mediators' evaluative role is more
prominent  than is recognised in the orthodox concepts of mediation and  that this reality must
be regulated effectively. Ultimately, the findings presented in this article are a sign of hope for
family mediation  after LASPO   and show  that regulatory guidance  has increasingly permitted
flexibility since the 1980s.

Family mediation  was introduced  in England and Wales in the 1970s in response to a struggling
court system. It was not intended to replace the adjudication system but was instead expected
to become  an  alternative for divorcing or separating couples.' This objective has shifted over
time, with policymakers  placing mediation at the centre-stage of family justice and attempting
to make  mediation 'the norm rather than the exception', as envisioned by the Lord Chancellor's
Department   in 1993.2 This was  manifested  in the Legal Aid, Sentencing and  Punishment  of
Offenders  Act 2012  (LASPO),  which  removed   legal aid for most private family law matters,
save in support  of mediation. In spite of these policy changes, mediation has faced multiple
difficulties post-LASPO.3 Notably,  uptake of mediation  has decreased  and  failed to recover.
Moreover,  when   mediation  is used, a significant proportion of users, albeit a minority, are
dissatisfied with the process.4

*  PhD Researcher, Cardiff University. The author would like to thank Dr Leanne Smith, Dr Sharon Thompson, the
   anonymous reviewers and the editor for their helpful comments on this article.
1  G Davis, Report of a Research to Monitor the Work of the Bristol Courts Family Conciliation Service in its First Year of
   Operation (University of Bristol, 1980), 3; Home Office, Marriage Matters: A Consultative Document by the Working
   Party on Marriage Guidance (Crown, 1979), para 7.10.
2  Lord Chancellor's Department, Looking to the Future: Mediation and the ground for divorce: a Consultation Paper, Cm
   2424 (1993), para 7.11.
3  M Maclean and J Eekelaar, Lawyers and Mediators: The Brave New World of Services for Separating Families (Hart
   Publishing, 2016), 69.
4  For a detailed discussion on party satisfaction with family mediation, see A Barlow et al, Mapping Paths to Family Justice:
   resolving family justice in neoliberal times (Palgrave Macmillan, 2017).

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