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Lord Archer of Sandwell moved Amendment No. 172:


Page 12, leave out lines 14 and 15 and insert ("and the parties suitable to the dispute having regard to all the circumstances of the case").

The noble and learned Lord said: Once again the Committee is confronted with a grouping for which the kindest adjective that springs to mind is "eccentric". The Committee may, however, wish to discuss with this amendment Amendments Nos. 173 to 175, 176 and 178. Amendment No. 177, in the name of my noble friend Lord Irvine will be spoken to by him separately when its turn is reached on the Marshalled List.

I think the most helpful way in which I can introduce this debate is to speak specifically to the two amendments standing in my name. I do not think there is any way in which one can give a preface, as it were, to the whole of this debate. Other Members of the Committee will then speak to amendments standing in their names.

Amendment No. 172 may appear to be a drafting amendment. It is proposed in order to emphasise what I hope is the intention of the clause. First, the intention, I hope, is that mediation is not to proceed unless it appears appropriate not only to the mediator but also the parties. Secondly, and separately, I hope that the intention is to bring into prominence the requirement that deciding whether it is appropriate depends on the circumstances.

I hesitate to say for the hundredth time that we are discussing mediation and not conciliation. I hope that there is not a danger that, like so many other admirable remedies mediation may become the automatic answer to every problem, even after the proceedings have begun. There is a danger that one has a Pavlovian reaction whenever confronted with the question of what to do next.

National Family Mediation points out that some situations do not admit of mediation. It says that it is possible to categorise a number of types of situation in which, from the outset, one can say that it is not appropriate.

First, it says that the dispute may be incapable of being negotiated because, for example, the parties are not agreed on the facts. Someone may have to agree with one of the parties and simply adjudicate on what are the facts. Secondly, there may be irreversible imbalances of power; for example, where there is domestic violence or where a woman from a minority ethnic group may find culturally that she is not in a position to be able to bargain with her husband. Thirdly, one of the parties may suffer from some mental or other impairment, with the result that he or she cannot meaningfully negotiate. Fourthly, one of the parties may feel coerced if he or she had to attend any kind of mediation process. Fifthly, there may be criminal child protection issues.

There one can categorise the situations. One simply looks at the situation and says that mediation is not appropriate in that case. But, of course, there are other

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situations which depend on the attitude of the parties. Even when the case does not fall into one of those categories, National Family Mediation emphasises that the case may not be suitable for mediation if one partner, even after agreeing to participate, demonstrates a lack of commitment by failing to keep appointments, to produce the necessary information or to abide by any agreements which have been made. I doubt whether any of that is controversial. I do not believe that we need a vote on whether there are situations which do not readily admit of mediation. But there has been some anxiety expressed in the country that the Government are anxious to make mediation a blanket remedy to the exclusion of such other remedies as legal advice.

I know that that is not the intention. The noble and learned Lord has said very helpfully on more than one occasion that one looks to see what is appropriate. I hope that he can assist by saying that today, and that he can assure the Committee that, if he pursues his suggestion--I believe that it was his own suggestion--to issue a code of conduct for mediators, he will include a specific direction to mediators to direct their minds to those questions at the outset.

May I make one other suggestion which may not fall squarely within the intent of this amendment. Perhaps the noble and learned Lord could include in the code a requirement that the mediator "shall make known" to the parties the availability of legal advice where that is appropriate and advise them to go down that path. That deals with Amendment No. 172.

Amendment No. 173 is directed to a very different question, although it relates to mediation. I suppose that that is why it has been included within this suggested grouping. It is intended to suggest a better mechanism than is found in the Bill for the collection of whatever contribution is assessed from the legally assisted party when legal aid is granted for mediation. The Bill proposes that it should be paid directly to the mediator. The noble Lord, Lord Meston, and the noble Baroness, Lady Hamwee, are more familiar with this matter than I am, but as I understand it, when legal aid is granted for legal advice and assistance from a solicitor, any contribution that is levied is paid not to the solicitor but to the Legal Aid Board which, in due course, pays the solicitor his or her proper costs and fees.

That has two fairly obvious advantages. First, the Legal Aid Board is likely to have a more cost effective mechanism for collecting what is due. Collecting money, as we all know in a number of contexts, requires letters and accountancy processes and reminders. All that costs money. So there is a cost element in the process of collecting. If the contribution is a small one, the cost of collecting it may be in danger of becoming disproportionate to the amount to be collected. Is it not better, I ask rhetorically, to use machinery which is already in place and to take advantage of the experience of the Legal Aid Board? That is the first reason behind the amendment.

Secondly, and even more importantly, if the recipient of legal aid and advice is in arrear with the contribution instalments, the solicitor who is doing the work for the assisted person may be required to cease doing any

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further work or incurring any further costs. It is the Legal Aid Board which notifies the solicitor and then takes whatever other action is necessary to see whether it is possible to recover the contribution. If the solicitor had to collect the contributions and then remind his or her own client that he or she was in arrear and that if those contributions were not paid further services would cease, it might create an undesirable conflict of interest for the solicitor. I assume that that is one reason why collection is carried out by the Legal Aid Board.

So a question naturally occurs and it is this: is there any distinction for that purpose between the position of the solicitor and the mediator? May the mediator, too, not be faced with that kind of conflict of interest? These were the considerations which were common both to National Family Mediation and the Law Society when they made representations on this issue.

From National Family Mediation there comes one further consideration, which is this. If the mediator can look forward to a block payment from the Legal Aid Board for a whole sector of work, then it can be sure of a cash flow and can plan its workload, investment in training and staffing. Therefore, for all these reasons it appears better that payment from clients should be received and processed by the Legal Aid Board.

I have added my name to Amendment No. 174, but it stands in the name of the noble Baroness, Lady Hamwee. I think it would be more sensible if I were to leave its introduction to her, reserving the right to say that I agree with her, if that arises. I beg to move.

9.15 p.m.

Baroness Hamwee: The noble and learned Lord, Lord Archer of Sandwell, has acted as the straight man for my amendment. I agree with what he has said as regards Amendments Nos. 172 and 173. He may have different reasons for promoting Amendment No. 174 as regards the statutory charge which applies when someone gains or retains property in dispute as a result of services provided by the Legal Aid Board, with the board having a charge on that property so that it can claw back its payment in respect of the services.

In the information guide published by the Lord Chancellor's Department on this Bill the comment is made that:


    "The statutory charge will not apply to mediation costs from the outset of the new system because the application of the charge is complicated and the Government and the Legal Aid Board will want to monitor how mediation works in practice before deciding how best to implement the statutory charge for mediation costs".

I read that paragraph because it seems to me that it is not quite what Clause 23(4) provides. It states "Regulations may provide" for the statutory charge. If the noble and learned Lord's view was that the statutory charge should apply but that the mechanism by which it should be implemented was to be considered, that is something rather different.

If there is no statutory charge, there is a danger of penalising those who cannot pay rather than those who will not pay. Clearly there are those for whom mediation is unsuitable--that has been agreed during the course of the debate--such as victims of domestic violence.

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Certain people for whom mediation may not be suitable may, through no fault of their own, be liable to repay their costs whereas others will not.

It is worth considering whether those in receipt of legal aid should have a financial stake in the outcome of the matter in order to encourage a cost-effective approach to mediation in the same way as one must consider a cost-effective approach to litigation. I recognise that I am treading on sensitive ground in making that statement, but it is certainly a matter worth considering.

Also, if the statutory charge were not to apply, it might be regarded as being a financial incentive to mediate, or rather not to negotiate or litigate. I am concerned that mediation through the back-door, as it were, may come to be regarded as compulsory when it is agreed that, though desirable, it should not be compulsory. For those reasons and also in order to discover whether the intention is that there should be a statutory charge, with the implementation as a matter to be considered, or whether this is still an open matter, I have put down this amendment.


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