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Baroness Elles: My Lords, before my noble and learned friend sits down perhaps I may ask him a question with regard to mediation in relation to Amendment No. 106A, which states:


What right would a party have or what procedure is available to appeal against the mediator's decision? It could be that one of the parties wanted mediation and would regret that such a decision should be taken by a mediator.

My noble and learned friend will be aware that anybody who has had to deal with divorce cases knows of many instances where the woman, particularly after going through the process for six months, becomes quite neurotic and is almost impossible to deal with, either through mediation or a legal representative. As the noble Lord, Lord Stallard, rightly points out, we are dealing with people rather than with law. One could have a mediator saying, "I cannot deal with this person" for whatever reasons--neurotic or psychological. What right would that party have to appeal against such a decision by a mediator? I shall be grateful if my noble and learned friend will advise me.

9.45 p.m.

The Lord Chancellor: My Lords, it is difficult to deal with every possible situation. This is a matter of co-operation. The mediator in question would be intended as the person who would undertake the mediation. Obviously the relationship has to be one in which the three parties can work together. If the mediator says, "I am sorry, I cannot do anything for you"--I assume that he would not mention the factors that my noble friend referred to--the party might then say, "In that case I shall just go for representation". But if not, it would always be possible to try a different mediator. In order to have mediation, one must have a mediator who is willing to undertake it. That is where ultimately the court is the last resort because the court cannot refuse to undertake decision making even where parties are not particularly reasonable.

The answer is that one would have to try another mediator to see whether he or she would be willing to step in where his colleague had feared to tread.

Lord Habgood: My Lords, before the noble and learned Lord sits down, I wonder whether it might be helpful if I were to quote from the mediators' code of

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practice. Much of the discussion that we have had has been theoretical. This is what mediators are advised to do:


    "Participation in mediation is always voluntary and any participant or mediator is free to withdraw at any time. If a mediator believes that any participant is unable or unwilling to participate fully and freely in the process, the mediator may suspend or terminate the mediation and may suggest that the participants obtain such other professional services as may be appropriate.


    "Mediation aims to assist participants to work out the arrangements which they consider appropriate to their own particular circumstances. In mediation decision-making always rests with the participants".

The Lord Chancellor: My Lords, in so far as that is addressed to me as a question at this stage, I accept it entirely as being a correct account of how mediators will proceed.

I think that it is rather theoretical to suggest that mediation can proceed without the parties agreeing to continue with it.

Lord Irvine of Lairg: My Lords, before the noble and learned Lord sits down, will he clarify this point on Amendment No. 106A? I refer specifically to the words,


    "where a mediator has certified for the purposes of section 13B(3) above that mediation does not appear to be suitable".

Does the noble and learned Lord advise us that if one party on consideration intimated the decision that he or she did not wish either to participate or to continue to participate in mediation then the mediator would be under a duty to certify that mediation did not appear to be suitable?

The Lord Chancellor: My Lords, yes, that is my understanding. I believe that that is a more flexible provision than one which determined the issue only at the beginning. This would open the way for a mediator, having had perhaps two meetings and having got on to a subject which the party was not prepared to discuss, or something of that kind, to state that the certification was possible.

I take the view that that is what the amendment means and that it has the effect of producing an informed decision rather than a decision which might be taken in the absence of proper information about what is involved.

Earl Russell: My Lords, I hope that the noble and learned Lord has been able finally to sit down. Nevertheless, I believe that those were three extremely helpful interventions which have got us quite a long way forward.

I was most grateful to the noble and reverend Lord, Lord Habgood--and I hope I am right and that is his correct style--for his stress on the mediator's code that mediation must be voluntary. What has worried the noble Lord, Lord Irvine of Lairg, and myself is that in some cases mediation may be more voluntary than in others. For someone of considerable means being without legal aid, which they probably would not get anyway, is not particularly distressing. But if someone who can only employ a solicitor with the help of legal

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aid does not get it then the degree of voluntariness in going to mediation may be much smaller than in some other cases. That is the situation that concerns us.

It is just possible, before the next stage of the Bill, that if we could put together what the noble and reverend Lord, Lord Habgood, said, what the noble and learned Lord said about the position of the mediator being in effect required to certify mediation as not suitable if the parties do not want it and the concerns of the noble Lord, Lord Irvine of Lairg, we might be in a position to get a new form of words that would satisfy all parties. If not, then Amendment No. 106 would be the proper answer to the situation.

I am still worried about it. As the noble Lord, Lord Irvine, predicted, I am not in the least happy with Amendment No. 106A. The House knows that I am somewhat allergic to the phrase:


    "in such ... circumstances as may be prescribed".

I take the noble and learned Lord's point that it allows for dealing with future circumstances. But the point is that the procedure only allows us to deal with categories. Here we are dealing with individuals. In cases where mediation is unsuitable, it may be unsuitable for reasons which have nothing to do with any category whatever. The intervention of the noble Baroness, Lady Elles, was much to that point. So I cannot be entirely happy about that idea. I do not believe that that amendment is the way forward.

The noble and learned Lord was confident that the mediators themselves are ultimately always the best judges of whether mediation is suitable. There is a distinct Platonist streak in the thought of the noble and learned Lord. We have here guardians taking decisions for the rest of us through the benefit of their wisdom. They do not always feel comfortable. I am reminded of the occasion--apocryphal no doubt--when the infant future Kaiser was being smacked by his nurse. The nurse said: "Believe me, this hurts me as much as it hurts you". "Oh", said the Kaiser, "and in the same place?" Assumptions taken by wise and benevolent superiors may be taken with the greatest care and benevolence in the world, but they may still not fit the person. In the end, especially in family law, it is the person for whom we are legislating. If the procedure is not acceptable to the person, they will go round the fences and circumnavigate the whole procedure.

Amendment No. 99 is not the answer to the problem. I beg leave to withdraw it without prejudice to what the noble Lord, Lord Irvine, may see fit to do with Amendment No. 106.

Amendment, by leave, withdrawn.

[Amendment No. 99A not moved.]

The Lord Chancellor moved Amendment No. 99B:


Page 12, line 21, leave out from ("Chancellor") to end of line 22 and insert--
("(6) Where the Board enters into a contract for the provision of mediation under this Part, the provision made by the contract as to the conduct of the mediation must include--
(a) provision requiring the mediator to have arrangements designed to ensure--

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(i) that the possibility of reconciliation is kept under review throughout mediation; and
(ii) that the parties are encouraged to consider the welfare, wishes and feelings of the children; and
(b) such other provision as the Lord Chancellor may direct the Board to include.
(7) Directions under this section may apply generally to contracts, or to contracts of any description, entered into by the Board, but shall not be made with respect to any particular contract.").

The noble and learned Lord said: My Lords, during the debate at the Committee stage of the Bill, I indicated that I felt that there might be some merit in having a code of practice dealing with mediation in order to ensure that public funds are directed towards those mediators who are providing a good quality service in the areas which we feel are most important. I have been considering such an amendment since the Committee stage. After discussion with the mediation profession and the Legal Aid Board, I have come to the conclusion that what is required is the amendment which I have put forward.

It is difficult for the Government statutorily to promulgate and support a code of practice without falling into the trap of regulating the profession itself, and that too rigorously. That is particularly so in relation to mediation, which needs freedom to develop and innovate in order to provide the best quality service as quickly as possible as the years go on. That said, it is clearly important that public funds are not spent on providers who do not provide a good quality service.

The Government are concerned to ensure that mediators are in a position to provide assistance in accordance with the aims of this Bill, in particular to keep the possibility of reconciliation under review, and to remind parents to consider at all times the welfare, wishes and feelings of their children. It is my view that in order to ensure that where public money is at issue in the provision of mediation, those ideals should be assured. I therefore tabled this amendment to provide that the Legal Aid Board may not contract for mediation unless it has in place arrangements to ensure that reconciliation and the welfare of children are given appropriate consideration during mediation.

These matters are currently dealt with in the code of practice issued by National Family Mediation. Other important matters are also covered. I am very grateful to the noble Lord, Lord Habgood, who gave a very clear statement about the details of that code when the House last deliberated on the Bill. The Legal Aid Board will of course not be restricted by this amendment as to what other provisions it can, and cannot, include in its contract. I should expect the contracts issued by the board to include provision relating to many other arrangements envisaged by the code of practice, together with more general provisions concerned with provision and delivery of mediation services, such as price, quality assurance, criteria and output.

I remind the House that the Lord Chancellor has power to direct the board as to particular provisions which the Lord Chancellor requires to be included in contracts. That allows the Lord Chancellor flexibility to make further directions as to the content of contracts if

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that becomes appropriate. But the significance of these amendments is that he would have to require that those were dealt with in any contract into which the board might enter. I beg to move.

On Question, amendment agreed to.

Clause 23 [Payment for mediation]:


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