The doing away with Legal Aid has courted much controversy in the media, across the legal community and for those people who have been affected by its demise.
This has been coupled with a government sponsored push to drive compulsory Mediation Information Assessment Meetings (MIAMs) for those who are involved in a family dispute such as a divorce or a child custody case.
On the face of it, this is a typical – and sweeping – government tick-box exercise:
~ Cut the Legal Aid Bill? TICK
~ Push people towards taking up mediation in order to de-clutter the crowded court system? TICK
~ The only losers are the lawyers, so no public sympathy there? TICK
Well, no…. the reality isn’t the above as life isn’t as simple as the cosseted few who sit in the Westminster Village think it is.
In terms of non criminal or immigration Legal Aid work, the governments’ spend was small potatoes – especially as a significant sum was recovered by getting a charge on property or receiving back costs from cash recovered/ preserved by the assisted person.
In children cases this was not the norm; but, like in financial claims, the application for public funding was still subject to a merits and means test. That way, the deserving and vulnerable received help and could be represented.
Before an application can be made to court for a divorce or child custody case, clients are now required to attend a MIAM.
The aim of the meeting is to see if mediation could be used to resolve their difficulties, rather than going straight to court.
Despite MIAMs being compulsory, there has been a dramatic reduction in take up – mainly because clients have not seen a lawyer who can make them aware of their choices.
The government’s new approach and its focus on mediation assumes:
~ That every person in a relationship is equal in strength and knowledge
~ That there will be no problem establishing true disclosure for an informed decision
~ That there will be no problems agreeing the value of properties or shares
~ That there will be a reasonable approach to the financial need of the financially weaker party
~ That everyone knows the likely reaction of an existing mortgagee to a proposed agreement
~ That the implications of everyone tied to an existing mortgage are the same
~ That a mediator is someone who can give sound information as to the likely realms of a settlement
I would question every one of the above as I am increasingly coming across what I feel are under settled potential agreements. The fact of the matter is that people require the strength and expertise of a specialist family lawyer on their team.
Solicitors ensure full and frank disclosure and provide expert advice on settlement. By having that knowledge and experience on side, clients can make an informed decision; especially as all advice is tailored by a cost/ benefit analysis. That is, at each stage, comparing likely court imposed settlement to an offer made and balancing that with what further legal costs might be incurred.
Mediation can, of course, work if everyone involved is open, honest and trustworthy and as long as one party is not able to pressurise or browbeat the other.
However, the onus is now on the stretched Judiciary to mediate and impose its views, but this isn’t feasible due to the time it has available and the increasing number of litigants in person (an individual, company or organisation that is not represented in court by a solicitor or barrister) it deals with. These factors can result is many adjournments and it’s hard to be sure if there has been appropriate disclosure from both sides.
To sum up, divorces are extremely stressful and they can be further complicated when children are involved.
I passionately believe that clients shouldn’t go it alone as having a real person on their side who can guide them through the process, challenge where necessary and advise on their own set of circumstances will give them the best chance of securing a fair and just agreement.
Lee Marston, became a partner in 2001 and heads up the Family Law team at Clough & Willis.
He is a Resolution Accredited Specialist in the financial side of divorce and children disputes. He was a founding member of the Family Law Panel in 2005 and has practised solely in Family Law for over fifteen years. He is particularly known for his vigour in pursuing his clients’ rights, especially when dealing with financial and parental issues.