Provision and Availability of Mediation

Part of Clause 24 – in the House of Commons at 10:45 pm on 17th June 1996.

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Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers) 10:45 pm, 17th June 1996

When I rise to speak and my wife is present, she always says to me, "Keep it short," but that is as nothing compared with what the Whips have been saying to me over the past few minutes.

Amendments Nos. 110, 111 and 112 amend clause 24 and provide a number of important safeguards and a strengthening of the provisions in relation to the provision of publicly funded mediation. In particular, they stress the voluntary nature of mediation—that where parties are influenced by fear of violence or harm, the mediator should be in a position to identify this at an early stage and mediation should not continue.

These are in addition to the requirements that mediators must have arrangements in place to ensure that the possibility of reconciliation is kept alive throughout mediation and to keep the parties informed about the availability of independent legal advice. They provide that the Legal Aid Board's contracts with mediators will require mediators to be working under, and complying with, a code of practice setting out the requirements that I have described.

Additionally, the code will require arrangements to be in place that are designed to encourage the parties to consider the welfare, wishes and feelings of each child and to what extent each child should be allowed to express their wishes in the mediation. I understand that the major mediation organisations already have in place such codes of practice, and it must be right to ensure that standards of excellence are maintained. The amendments are important and worth while and the Government are pleased to support them.

Amendment No. 54, which is a Government amendment, and amendment No. 4, are both concerned with clause 26, the presumption in favour of mediation. I ask the House to support the Government's amendment, which addresses the same issues as amendment No. 4, but provides a neater solution. Amendment No. 54 provides for the removal of the presumption in favour of mediation, which had aroused concern among many hon. Members in all parts of the House. However, amendment No. 4 retains the presumption in favour of mediation. It was made clear by hon. Members in all parts of the Committee that this was not desirable. Furthermore, it adds a new presumption in favour of representation in cases where harm or ill-treatment are an issue. This sets up a potentially confusing conflict for the board, the mediator and the client when suitability for mediation is being considered.

The requirement to attend the meeting will not apply if there are proceedings under part IV of the legislation—that is to say, applications for remedies in cases of molestation and violence, section 37 of the Matrimonial Causes Act 1973 emergency applications for freezing of assets where there are assets about to be removed from the jurisdiction, and public law Children Act 1989 cases.

The amendments will provide the necessary protection for vulnerable parties and those for whom mediation is not suitable while safeguarding public funds from the expense of unnecessary litigation. They demonstrate the Government's commitment to the development of mediation in family matters and I commend them to the House.

Government amendment No. 54 deals with the concerns raised in Committee and provides that there will be no presumption in favour of either mediation or representation. This seems to be a more effective and simpler way of achieving the even-handed approach for which amendment No. 4 appears to strive. We therefore reject amendment No. 4 and support the other amendments.