John Bolch: Legal aid cuts have created a two-tier system, and mediation is not the answer

Family Law|June 3rd 2014

Over the weekend we had another reminder, as if one were needed, of the unfair two-tier family justice system that has been created as a result of the abolition last year of legal aid for most private law family matters. It was reported that a survey of nearly 500 magistrates revealed that 46 per cent of the people seen by them in private family courts are now representing themselves, and that almost of all of the magistrates questioned said they believed that self-representation was having a negative impact on the court’s work, leading to delays and potential unfairness if one parent is legally represented but the other is not.

We have heard it all before. Cases that should take an hour are now taking a whole day. Litigants in person are struggling to represent themselves, with inadequate knowledge of the law and procedure, and courts are desperately trying to ensure fairness, particularly where one party has the benefit of legal representation and the other party has not. Inevitably the unrepresented parties are at a huge disadvantage, simply because they can’t afford a lawyer. We really do have a two-tier system – one for the haves and one for the have-nots, more suitable for the Victorian era, rather than the twenty-first century.

And how does the Ministry of Justice respond to all of this? Why, in the same way it always does: by repeating the same old mantra:

  1. We have one of the most expensive legal aid systems in the world (which may or may not be true, but is of no comfort to those who are left to fend for themselves).
  2. We had reached a point where court was ‘the default option’, no matter whether it was best suited to resolve the issue before it. Really? Someone at the MoJ seems to be conveniently forgetting that prior to the legal aid cuts only about 10% of cases went to court – with the vast majority of the other 90% being settled with the benefit of lawyers.
  3. Legal aid remains available to those ‘most in need’. Their definition of ‘most in need’ seems pretty limited – less than one per cent of requests for exceptional funding in connection with family matters were granted between March 2013 and March 2014.
  4. Finally, and most importantly: all those unfortunates who can’t afford representation should, of course, resolve their cases via mediation, rather than through the courts.

Well, I’m sure some of them can. But many of them can’t and, as we have seen, the fact that they don’t have lawyers actually makes mediation less likely, as the lawyers aren’t there to inform them about mediation and, where appropriate, to encourage them to try it.

The important words there are ‘where appropriate’. Mediation is simply not a panacea, a complete replacement for court proceedings. The problem never was the cases that are capable of settlement – the problem is the cases that are not capable of settlement, where the court is required to resolve the matter.

I know I’ve said it here before, but if the MoJ keep repeating their mantra then it seems that those who strongly disagree must keep repeating their refuting argument: mediation is not always appropriate. Examples of this are where both parties are not willing to cooperate, or where there is any suggestion of ‘undue influence’ or duress by one party on the other. Unfortunately, without lawyers such situations are likely to be more common – contrary to what the MoJ would have you believe, good lawyers encourage their clients to settle, and having a lawyer can neutralise problems of one party unduly influencing the other.

Attempting to force inappropriate cases into mediation is simply adding insult to the injury of denying legal representation to the poorer in society. Mediation in inappropriate cases will, at best, be a waste of time and money. At worst, it could result in weaker parties agreeing to unsatisfactory outcomes.

The amount that was saved by the legal aid cuts was a drop in the ocean of government spending. Was that saving really worth the cost of condemning the less well off to a second-class legal system?

Photo of the Royal Courts of Justice by G.Davies via Flickr

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. The impact of the legal aid cuts, again by John Bolch - Marilyn Stowe Blog says:

    […] Legal aid, or the lack of it, is a regular theme in my posts. In fact, sometimes it seems that I write about little else other than the effects of the government’s fateful decision to virtually abolish legal aid for private law family matters. However, I only write about it so much as it is so often a subject in the news – a state that will no doubt continue for some time to come. […]

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