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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: 53 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. Introduction 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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