By Rachael Blakey, PhD Candidate, Cardiff University

Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and Children and Families Act 2014 (CFA), mediation has taken a visible centre stage in England and Wales’ family justice system. Much of the discussion succeeding the reforms hasfocused on the move towards private resolution and the inaccessibility of legal advice for many individuals as a result of the heavy cuts to legal aid. Public information on family mediation has subsequently risen in importance, although little research in this area has been carried out.

From June to September 2017, I conducted an empirical study assessing the accessibility of public information on family mediation. This blog post summarises my research, based ona paper at SLSA 2018 in the Family Law and Policy stream.

For the project, I analysed 27 public documents on family mediation from three samples: mediation providers, websites, and gatekeepers to mediation. I adopted a mixed-methods approach and first assessed documents via qualitative content analysis, drawing common themes from the data. These findings were then triangulated by quantitative readability formulae, a method (uncommon in socio-legal studies) that calculates the difficulty of a text.[1]In short, my research sheds light on how public information surrounding family law disputes is unclear, inundatedwith complex language, and biased towards family mediation.

The language used within documents

Turning to the results of the study, there was a widespread use of complex and technical language, including legal jargon, throughout the documents analysed. For instance, legal terminology was only explained around 25% of the time it was used. Furthermore, readability tests predicted that whilst most information was readable to the majority of the English and Welsh public, people with low literacy skills would struggle to understand any of the 27 documents.

Previous attempts to improve the quality of information created by mediation providers, most notably by the Ministry of Justice and Family Mediation Councilin 2014, have clearly not had their intended effect. Organisations must not only reduce the amount of complicated language used in their informationbut begin to clarify what mediation entails, setting out its underlying concepts through non-technical, plain English. However, we currently lack a unified and coherent understanding of mediation and its theoretical underpinnings, making this difficult to achieve in practice.These issues form the basis of my PhD and will be analysed in detail over the coming years.

Mediator practice post-LASPO

The findings also showed that mediators are adapting their approaches in response to the new, diverse client base following LASPO and CFA. Mediation services advertised a variety of models on offer, including child-inclusive, child-focused and online mediation. In contrast, non-mediation bodies, particularly not-for-profit advice services, rarely discussed the different mediation models available, confirming concerns that information on family mediation is incoherent and disjointed. Increasedconversation between mediation services and other organisations, including local courts, may help to resolve this information gap and provide readers with reliable guidance on the mediation process. Nonetheless, just because mediation models are advertised by a provider does not necessarily mean the models differ in practice, as highlighted in Mapping Paths in relation to child-inclusive mediation.[2]

The presentation of family mediation

Finally, it is apparent from the findings that many gatekeepers to family dispute resolution procedures have embraced the pro-mediation discourse behind the LASPO and CFA reforms. Mediation was positively presented throughout all 27 documents, particularly in comparison to adjudication: whilst mediators ‘empower’ parties, judges ‘impose’ a settlement. In general, there was little consideration as to when family mediation was inappropriate and what other procedures, such as collaborative law, were available.

This positive portrayal by mediation providers is justified because they are, after all, trying to sell a service. However, the gatekeepers within the study, mainly consisting of advice services, present themselves to the public as neutral, non-biased institutions with no agenda. My findings suggest the complete opposite: many gatekeepers and advice services now view mediation as the optimum procedure, moving family disputes back into the hidden private sphere. Additionally, the current state of information is connected to the rise in litigants in persons within the family courts – I consider this in more detail in a future article.

What next?

My project stresses the evident need to focus more attention on the information available to people involved in legal disputes. It concludes that there is a lack of accessible information, reinforced by the widely accepted promotion of family mediation as a process suitable for all. Overall, the findings add to calls for a neutral, online portal that provides clear and straightforward information on private family law disputes. In the post-LASPO climate where mediation is presented as the best option, the portal must provide information on a range of dispute resolution procedures, including their drawbacks.

I will be publishing further results ofthe project later on in the year. If you have any comments or would like further information about the project, you can tweet me @rachaeljblakeyor See you at SLSA 2019!

[1]See William H Dubay, The Principles of Readability(Impact Information 2004) for an overview of readability

[2]Anne Barlow and others, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Palgrave 2017)