Forcing square pegs into round holes just doesn’t go

In 2011, the current government began laying out its plans for cutting the then annual 2 billion legal aid bill. Following the usual consultations and passage into the statute books, the changes to the scope of legal aid provision came into effect in April 2013. Though they are not yet a year old, it has become very apparent, to all involved in family law proceedings, that these changes have had a dramatically negative impact upon both divorcing couples, and those who use the courts to settle issues of residency and contact with children.

Simply put, Legal aid continues to be available for family mediation; but it no longer covers any legal fees for financial cases (including divorce) or private children law matters (such as residence/contact disputes) unless there is an element of domestic violence. The government heralded its sweeping changes as something akin to the dawning of a new era; one in which divorcing couples and battling parents would take their issues not to the courts, but to mediators, and solutions would swiftly follow. In practice quite the reverse is happening. No new era has dawned. In fact, the number of couples turning to mediation services has dropped by 47% during 2013. Forcing the square-peg divorcing couple into the round hole of mediation appears to have failed spectacularly. But why?

The reasons are both complex and of vital importance to us here at Prince Family Law. For us to be an effective solution for our clients, we need to understand what motivates them and what their needs are. We know that clients often want their day in court. They want ‘their side’ of the argument to be heard, publicly. A genuine desire to avoid compromising one’s principles or losing one’s dignity drives people forward, despite the challenges of representing oneself (known in the field as being a litigant-in-person). Mediation cannot necessarily satisfy any of those natural desires. But the considerable rise in litigants-in-person, brought about by the unavailability of legal aid in the majority of divorce cases now, is proving to be utterly overwhelming for our court system. So much so, that those who pursue this route may end up feeling that their ‘day in court’ simply wasn’t worth the effort.

Judges at all levels are making it clear that the rise in this kind of litigation is damaging to the legal system. They feel that their work is made exponentially harder, changing the very essence of what they do from being adversarial (where they make a decision based upon the presented evidence) to inquisitorial (where they have to spend a great deal more time establishing the facts of the case and guiding litigants in how the court process works). The Court of Appeal, in the case of Wright –v- Michael Wright Supplies Ltd (2013) expressed its view on the matter very clearly;

 “Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved….[it is] disproportionately time-consuming……I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

Judges are also concerned that if one party has representation but the other does not, the costs to the represented party are climbing, as their lawyer does his or her best to work with the litigant in person, whose inherent unfamiliarity with the legal process slows the case down.

Beyond their own exasperation and their concern about the rising costs of representation, Judges are also concerned that the good work lawyers once did to bring about swift and suitable settlements is now laid waste, and less favourable solutions are becoming the norm. As Judge Harold Godwin states, they are “Less favourable in the sense that judges are always constrained to determine cases in the way the law requires whereas a negotiated settlement often enables the parties to settle their differences in ways judges are unable to employ. For example, sometimes a simple apology for what has happened and a resolve to deal with one another differently in future may resolve a case but a judge could not order that to happen.”

Marilyn Stowe, a high profile divorce lawyer, sums up the situation very well; “The system has hit the buffers and the results are clear: litigants in person causing chaos in the court room, ignorant of the process and the law, too frightened or too emotional to settle outside court. This is particularly the case in family law, where emotions frequently run very high. And who can blame desperate people when their lives, their children’s lives and everything they own is all being turned upside down and there is no-one now to help them through a legal process?”

One could all too easily read our plea to you to resist self-representation, through the words of this blog, as a self-interested marketing ploy. Yet we hope that you can see that our words of warning are shared with you for much more principled reasons. Our vast experience in the challenging environment of the family law courts gives us an insight into how best to make the law work for all parties, so that swift, sensible solutions are reached. Mediation is a genuine option, and our team will always guide you through all of our competitively priced options with sensitivity and professionalism.