The Legal Aid Crisis - The Out Of Court Problem

Daniel Priestley - Writer and Editor

As established in the previous article in this series discussing the current crisis, legal aid has been almost entirely removed in private family law cases. The removal of lawyers from the family court process, specifically in child arrangements issues and divorce cases, has caused an issue with the traditional process. Perhaps surprisingly, a lack of lawyers has caused more time in court and this is partially due to two out of court practices not taking place. There are two practices which lawyers would engage in before starting proceedings for a child arrangement order and other private law endeavours; they would refer their clients to mediation and they would attempt to negotiate with the other party’s lawyer outside of the courtroom.

Settlements

A good example of the need for out of court settlements are cases for financial orders in divorce. When parties cannot reach an agreement between them with regards to the division of joint assets owned by the married pair or when one party believes they should be entitled to a portion of the others income or assets, they will request a financial order from the court. Usually this process takes about twelve months from the date of the initial application and in that time three court hearings take place - the first appointment, the financial dispute resolution hearing (FDR) and then the final hearing. The FDR takes place as a without prejudice hearing - which means that comments and offers made within the hearing cannot be used in the financial hearing. This appointment is aimed at getting the two parties to consider compromise and then come to an agreement outside of court, prior to the final hearing.

The key point here is that the court process is designed to get the parties talking to each other and negotiating outside of court time. However, this is significantly more difficult with unrepresented parties. As we know, now only 19% of all family cases have a lawyer on both sides since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Lawyers are able to negotiate more effectively than a litigant-in- person for many reasons. There is a mutual respect in the world of law, where opposing lawyers try to be open and fair in negotiations which allows both parties to act in good faith without suspicion from the other side. Speaking anecdotally, I have seen litigants-in -person consumed by suspicion that the other party, or the other side’s lawyer is out to get them and it can cloud their judgement when it comes to negotiations. Secondly, as lawyers have a better understanding of the court process, they realise that it is expected that they attempt negotiations outside of the courtroom which litigants in person may simply refuse to do. Thirdly, there are of course many issues of understanding when it comes to litigants in person. They may not for example know that the starting point with all financial settlements in divorce is a 50/50 split of the assets. This means they will feel out matched in a negotiation and therefore stick to the courtroom.

All of this results in more difficulties in the court process and more valuable court time taken up by these disputes. Prior to LASPO, 73% of agreed orders were “achieved through negotiation by lawyers”. This clearly shows one sources causing the strain on the sytem.


Mediation

In child arrangements cases (previously referred to as custody cases) prior to the introduction of Legal Aid, Sentencing and Punishment of Offenders Act 2012, one of the most common techniques for resolving disputes was in the form of mediation. This is where both sides sit down with a neutral third party and come to some agreement. This is usually healthier for the relationship between the parties and therefore healthier for the child concerned. It has been shown that arrangements through mediation rather than those imposed upon them by the court system are more likely to not fall apart as both parties have consented to them in the first place.

However, despite these advantages of mediation and others including the reduced cost, a success rate of about 75% and faster process, mediation has been on the downtake since the legal aid cuts. Cases assessed for mediation fell from 31,000 in 2013 to only 13,000 in 2017. One of the reasons for this is that lawyers tended to facilitate mediation taking place. A report done by the Legal Aid Board Research Unit showed that 9 out of 14 lawyers interviewed would try to refer clients to mediation, with one stating that “clients themselves who are keen to go to mediation are in the minority”. Litigants in person often can see no possible chance of agreement with the other party due to their emotional stake in the case and require a push into giving mediation a go.In addition to this, as was pointed out by Lady Hale in a speech at London South Bank University, there is little incentive for a represented party to attend mediation if they know they are going up against a litigant in person in court.

The Children and Families Act 2014 attempted to ensure that mediation still took place by forcing applicants in the relevant family areas to attend a family mediation information and assessment meeting. However in practice this is seen as more of a box ticking exercise by litigants in person to allow them to bring their case to court. They merely have to go along to mediation services and state that they believe mediation will not work and the case then able to be brought to court. Organisations such as the PSU and Citizen’s Advice are unable to give legal advice and cannot push clients themselves to engage in mediation and therefore it no longer takes place in many cases.

These out-of-court parts of the legal process have been directly damaged by the world of austerity generated by the legal aid cuts. Despite government provision to grant forms of legal aid for mediation, the appetite is not there with litigants in person to seize the opportunity. Settlements cannot be effectively negotiated when either or both sides are unrepresented. What these problems draw the most attention to is the short sighted nature of the legal aid cuts. Taking out a fundamental part of access to justice has wide reaching effects and is slowly causing the collapse of a very delicate legal system which is resulting in courts overwhelmed by litigants in person and unfair outcomes for citizen’s from poor, or even middle class, backgrounds.

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SOURCES:
John Eekelaar, ‘“Not of the Highest Importance” : Family justice under threat’ (2011) 33 Journal of Social Welfare and Family Law 311
Sarah Maclean, Legal Aid and the Family Justice System (Legal Aid Board Research Unit 1998) 91
Emily Dugan, 'This Is How Parents cope in Court With No Lawyer When Access To Their Kids Is At Stake' (Buzzfeed News, 9 November 2018)
Hale, 'Young Legal Aid Lawyers: Social Mobility' (Supreme Court, 30 October 2013) <https://www.supremecourt.uk/docs/speech-131030.pdf>
Photo Credit - Dmitri Paskevic - https://unsplash.com/photos/YjVa-F9P9kk

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