The Government’s decision to withdraw legal aid funding from most family cases has given rise to a huge increase in the number of lawyerless litigants, or ‘litigants in person’ – people acting, that is to say, without legal representation. The drive to push these litigants away from the court and into alternative means of dispute resolution such as mediation is clearly not working – and that is plain for all to see. When attending county courts up and down the country in my capacity as a family lawyer, I have watched the numbers of lawyerless litigants getting ever larger.
They come into court, with little understanding of the administrative procedures that the court adopts or the legal principles that will guide a judge to make a decision on a particular issue. They look for information to the internet, books or free advice centres. As a result the courts have started to become clogged up with cases progressing at a slower pace, with no legal advisers involved in the process to ensure that timetables were adhered to, appropriate arguments advanced and inappropriate arguments put to one side.
As well as being a family lawyer, I am also a mediator. I am part of a group in the Leeds and West Yorkshire area who participate in a rota by spending half a day at our local court, without charge. We make ourselves available should the judge consider that a particular case might be suitable for mediation. We also discuss with the Cafcass officer in attendance whether they consider any of the cases might be capable of being resolved through mediation. When I undertook a recent session, all five cases in the court list for that day involved parties who did not have solicitors representing them. Furthermore, it arose during discussions between the Cafcass officer and myself that all five of those cases were clearly not suitable for mediation for different reasons.
My fellow Leeds mediators also report that there is very little demand for mediation in the Leeds Court, but nevertheless we persevere, such is our commitment to the mediation process. We recognise that to many of the people who come to court, the concept of trying to resolve your differences through mediation rather than having a decision made for you by a judge still seems something of an alien concept. I find that the majority of mediation referrals come before the parties have engaged in the court process and there is a fear that once the court process has started it may be too late for many to change tack.
A local judge told me that some people, particularly in cases involving children, become so embroiled in litigation that they call on the courts to determine the most minor of issues, as they have become incapable of agreeing anything at all with their partner.
Why do people still prefer the idea of going to court rather than mediation? One reason, perhaps bizarrely, might be money. If a party wishes to act in person without legal advice and go through the court system, they only have to pay a court fee. They do not have any other costs to bear, whereas with mediation they have to pay for each session, usually on a time basis or at least on a fixed fee per session. The reality too is that people often want to have that “day in court”, even if ultimately it turns out to be less rewarding than they expected it to be.
Unrepresented parties inevitably slow the court process down. The judiciary have to take longer explaining the decisions they make. The parties will not have the benefit of lawyers explaining the process before they go into court, managing their expectations of what is likely to happen and what can and cannot be achieved, and then after the hearing explaining what has happened and what needs to be done in response to the judge’s decisions. The courts are also sometimes more lenient with litigants in person who do not comply with court deadlines – for example those for filing statements of their evidence or providing information – and the effect of this can be to create further delay.
The withdrawal of legal aid funding and the increase in the number of litigants in person has also had the effect of placing a greater cost burden on the party who does have legal representation. One of the new rules which came out in April of this year relates to the preparation of bundles of relevant documents for every hearing. In the absence of guidance from the court as to how these rules should apply to different types of hearing, which after all could be a 15 minute appointment or a 15 day trial, the lawyers are required to prepare further paperwork and create additional bundles of documents to assist the court but at the same time increasing the costs for clients.
These bundles help the court to understand the issues and deal with matters more efficiently, but the effect is often to put an additional cost burden on the represented party, as they have to pay for the extra work that needs to be undertaken. These costs are not shared by the party who has chosen not to instruct a solicitor. I have heard of parties who will take legal advice and then not be represented in court in an application they have brought, whilst their former spouse / partner is represented. The unrepresented party will act on their own, with advice in the background from a solicitor at the short court hearings when no final decisions are made and so avoid incurring legal fees. The case is then listed for a final contested hearing and the responsibility for preparing all the final hearing bundles is left to the party with the legal representation. Then, at the eleventh hour, after all that work has been done and the costs incurred, the unrepresented party brings in their legal representation, saving themselves what may have amounted to thousands of pounds in fees for the preparation costs.
Sometimes going to court is the only option. The party on the other side may be refusing to properly disclose information or co-operate, or it may be simply because the two parties cannot reach an agreement. So a third party, i.e. a judge, has to be brought in to make a decision. There will also be times where emergency steps have to be taken to protect your client, to protect children or to protect the family assets. However I use the court as a forum of last resort, having tried other means to resolve a client’s issues beforehand – whether through negotiation, collaborative law, or mediation.
The Government may have succeeded in slashing its legal aid budget but I cannot help but think that it could all end up being smoke and mirrors. The costs saved in legal aid are often shifted in part to the parties who would not have qualified for legal aid in any event. They now and have to pay for their legal representation, as well the additional costs of a greater strain on the court system. Meanwhile, separating couples and their children find themselves sinking in a sea of uncertainty and worry about their futures.
Photo of Park Square, Leeds by RichTea via Wikipedia under a Creative Commons licence