Legal Aid Act 1988

[F1 Part IIIA E+W Mediation]

Textual Amendments

F1 Pt. IIIA (s. 13A) inserted (21.3.1997) by 1996 c. 27, s. 26(1); S.I. 1997/1077, art.2

[F2 13A Scope of this Part. E+W

(1) This Part applies to mediation in disputes relating to family matters.

(2) “Family matters ” means matters which are governed by English law and in relation to which any question has arisen, or may arise—

(a) under any provision of—

(i) the 1973 Act;

(ii) the M1 Domestic Proceedings and Magistrates’ Courts Act 1978;

(iii) Parts I to V of the M2 Children Act 1989;

(iv) Parts II and IV of the Family Law Act 1996; or

(v) any other enactment prescribed;

(b) under any prescribed jurisdiction of a prescribed court or tribunal; or

(c) under any prescribed rule of law.

(3) Regulations may restrict this Part to mediation in disputes of any prescribed description.

(4) The power to—

(a) make regulations under subsection (2), or

(b) revoke any regulations made under subsection (3),

is exercisable only with the consent of the Treasury.]

Textual Amendments

F2 Pt. IIIA (s. 13A) inserted (21.3.1997) by 1996 c. 27, 26(1); S.I. 1997/1077, art.2

Marginal Citations

M1 1978 c. 22.

M2 1989 c. 41.

[13B F3 Provision and availability of mediation. E+W

(1) The Board may secure the provision of mediation under this Part.

(2) If mediation is provided under this Part, it is to be available to any person whose financial resources are such as, under regulations, make him eligible for mediation.

(3) A person is not to be granted mediation in relation to any dispute unless mediation appears to the mediator suitable to the dispute and the parties and all the circumstances.

(4) A grant of mediation under this Part may be amended, withdrawn or revoked.

(5) The power conferred by subsection (1) shall be exercised in accordance with any directions given by the Lord Chancellor.

(6) Any contract entered into by the Board for the provision of mediation under this Part must require the mediator to comply with a code of practice.

(7) The code must require the mediator to have arrangements designed to ensure—

(a) that parties participate in mediation only if willing and not influenced by fear of violence or other harm;

(b) that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible;

(c) that the possibility of reconciliation is kept under review throughout mediation; and

(d) that each party is informed about the availability of independent legal advice.

(8) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider—

(a) the welfare, wishes and feelings of each child; and

(b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.

(9) A contract entered into by the Board for the provision of mediation under this Part must also include such other provision as the Lord Chancellor may direct the Board to include.

(10) 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.]

Textual Amendments

F3 S. 13B inserted (21.3.1997) by 1996 c. 27, s.27; S.I. 1997/1077, art.2

[13C F4 Payment for mediation under this Part. E+W

(1) Except as provided by this section, the legally assisted person is not to be required to pay for mediation provided under this Part.

(2) Subsection (3) applies if the financial resources of a legally assisted person are such as, under regulations, make him liable to make a contribution.

(3) The legally assisted person is to pay to the Board in respect of the costs of providing the mediation, a contribution of such amount as is determined or fixed by or under the regulations.

(4) If the total contribution made by a person in respect of any mediation exceeds the Board’s liability on his account, the excess shall be repaid to him.

(5) Regulations may provide that, where—

(a) mediation under this Part is made available to a legally assisted person, and

(b) property is recovered or preserved for the legally assisted person as a result of the mediation,

a sum equal to the Board’s liability on the legally assisted person’s account is, except so far as the regulations otherwise provide, to be a first charge on the property in favour of the Board.

(6) Regulations under subsection (5) may, in particular, make provision—

(a) as to circumstances in which property is to be taken to have been, or not to have been, recovered or preserved; and

(b) as to circumstances in which the recovery or preservation of property is to be taken to be, or not to be, the result of any mediation.

(7) For the purposes of subsection (5), the nature of the property and where it is situated is immaterial.

(8) The power to make regulations under section 34(2)(f) and (8) is exercisable in relation to any charge created under subsection (5) as it is exercisable in relation to the charge created by section 16.

(9) For the purposes of subsections (4) and (5), the Board’s liability on any person’s account in relation to any mediation is the aggregate amount of—

(a) the sums paid or payable by the Board on his account for the mediation, determined in accordance with subsection (10);

(b) any sums paid or payable in respect of its net liability on his account, determined in accordance with subsection (11) and the regulations—

(i) in respect of any proceedings, and

(ii) for any advice or assistance under Part III in connection with the proceedings or any matter to which the proceedings relate,

so far as the proceedings relate to any matter to which the mediation relates; and

(c) any sums paid or payable in respect of its net liability on his account, determined in accordance with the regulations, for any other advice or assistance under Part III in connection with the mediation or any matter to which the mediation relates.

(10) For the purposes of subsection (9)(a), the sums paid or payable by the Board on any person’s account for any mediation are—

(a) sums determined under the contract between the Board and the mediator as payable by the Board on that person’s account for the mediation; or

(b) if the contract does not differentiate between such sums and sums payable on any other person’s account or for any other mediation, such part of the remuneration payable under the contract as may be specified in writing by the Board.

(11) For the purposes of subsection (9)(b), the Board’s net liability on any person’s account in relation to any proceedings is its net liability on his account under section 16(9)(a) and (b) in relation to the proceedings.]

Textual Amendments

F4 S. 13C inserted (21.3.1997) by 1996 c. 27, s. 28(1); S.I. 1997/1077, art.2