Recently Victor Zermansky, my former principal to whom I was articled, passed away aged 81. When I was his trainee, he and his firm were in their heyday. A brilliant scholar, he had started his firm aged only 23, building it up from scratch. By the time I joined him, when he was in his 50s, his firm had grown and he represented some of the most prestigious clients and companies in the area, but he never forgot what he regarded as his obligations to the less fortunate. He was passionate about legal aid.
Thirty years ago, when I was his trainee, virtually everyone who wasn’t very wealthy qualified for legal aid, albeit with a contribution and we made no distinction at all between any of our clients. I too followed his lead until the early 90s. I had a young son and was unable to work full time but of course still needed to make ends meet, so I decided to quit legal aid. Everyone else in the firm continued to offer it however.
High street family lawyers across the country also followed the same route, working hard for a diminishing rate of return over the years, until last April when the axe finally swung. Private family clients, once eligible for legal aid to go to court, were hung out to dry, left with only mediation available to them via legal aid.
Mediation has been continuously pushed and promoted by the current government as a replacement for the courts, but what has happened in practice? It has been roundly rejected by a public who are voting with their feet. They trust the law, they trust the courts, they trust solicitors and they don’t want mediation. Numbers in mediation have dramatically slumped. Instead, they are applying in their masses to the courts.
Simply put, mediation hasn’t worked. So the government is faced with a huge predicament. We cannot underestimate the scale and size of this problem or the potential for worse to come as new arrangements come into effect designed to keep people out of court.
We lawyers play a large part in the justice system. We oil the wheels of the courts, we are vital cogs in a process that ensures the law is operated correctly and fairly. We advise and fight for our clients – that may have become an unfashionable concept to all except the man in the street, but it is exactly what our clients expect from us. They entrust their futures to us and in return we do our best to make sure their futures are good ones.
We are also a vital buffer between the judge and the client. Judicial discretion is a cornerstone of family law – it is applied to every case. It needs lawyers to make a strong case for their clients, and to advocate for the fairest form of resolution using the tools of the trade: law, case law and of course our own intellect, honed after many years of training and experience in the field.
Remove those lawyers, and chaos ensues – something we have already seen over this past year. 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?
The government so often sees the world only through the prism of accountancy – if something initially looks cheap, it must automatically be good they conclude. But when real life fails to comply with the theory, when the public can see they are being short changed, the government still charges onwards with initiatives that can end up costing more than they save. We saw it with the CSA.
We now have the government spending £25 million, a staggering, eye-watering sum, on mediation. I’ve been a mediator for 20 years and it still hasn’t taken hold. It has its uses, granted, and can at the right time work very well. But it was never intended, and never should be intended, to replace the court room.
It didn’t take off 20 years ago, and it hasn’t taken off now, because mediation must be consensual for it to have any prospect of success. If your partner has left you or been unfaithful, or is trying to prevent you from seeing your children, are you realistically likely to achieve a successful mediated agreement at that point? No. People full of hate, anger, or loss, offered either a lawyer just for them or a lawyer-mediator unhesitatingly want their own lawyer, to act for just them alone.
The government’s thinking is muddled – it appears logical on the surface but is based on fundamental flaws. Forcing people down one route and expecting them to reach agreement doesn’t guarantee any success. Mediation doesn’t necessarily offer even a legally qualified mediator (as opposed to an experienced judge. It offers no orderly process governed (if necessary) by court orders, no interim relief, no legally enforceable outcome. It will still leave participants in limbo even when it works, because it’s only a partial process, much the same as the agreements parties are now encouraged to make in relation to child support.
So please, let’s think this through. Let’s not waste masses of millions on promoting mediation which was never designed for this kind of job and continues to fail. Let’s call a halt to the much-too-basic, far-too-gimmicky apps, websites and calculators, none of which can provide the personally-tailored outcomes every couple is in fact entitled to under a law which is a benchmark for other legal systems across the globe.
Let’s spend all that money instead on devising a new form of legal aid, one designed for the contingencies of real life, one that can work – a tool, not a weapon.