Nigel Shepherd is worried that mediation will cut lawyers out of the divorce process
The 1990s must have come as a rude shock to any family lawyer who had been hoping for a quiet life. First came the Children Act, then we were hit by the Child Support Act. And now it seems likely we shall have a new Divorce Reform Act alongside the most sweeping changes to legal aid since the system was introduced.
Reform of the grounds for divorce is long overdue and couples should be encouraged to focus on the future. Removing fault from the process and replacing it with a simple year's wait is a positive move.
The proposal for ensuring people have proper information about the process is also to be welcomed so allowing parties to make informed choices.
However, the problems arise with the way in which these changes will be funded. Although mediation can undoubtedly benefit more couples than presently take advantage of it, it is probably still suitable only for a minority. The Government, however, seems to be persuaded it is the best way of resolving "most family cases".
The reasons for the Government embracing mediation so whole heartedly are not entirely altruistic. It is convinced mediation is cheaper than negotiation through solicitors or litigation, with which it was constantly and unrealistically contrasted throughout the recent White Paper on divorce and the legal aid Green Paper. When the theory is tested I think the Government will be surprised by the true cost of mediation on a national basis.
We know there is not going to be any new money for the new system and the information sessions and wider mediation provision will have to be paid for out of the existing legal aid budget. This can only be done by restricting funds for legal advice and representation.
How will the balance be tipped in mediation's favour? The answer is by offering those on legal aid little other choice. It is proposed there should be guidelines as to when it would be unreasonable to expect someone to mediate, for example, in cases of domestic violence. If the applicant does not fall within these guidelines, then there would be a further interview with a mediator to explain the advantages again.
Most significantly, however, the statutory charge will be used as a blatant financial incentive to mediate. The Government intends that the statutory charge should continue to apply to solicitor negotiation and litigation, but not to mediation. Faced with this costs threat, individuals, even those for whom mediation is patently unsuitable are going to feel obliged to give it a try, which will discredit the process and be a waste of time, money and emotional energy.
Mediation is at its most effective when parties choose it voluntarily, commit themselves to the process and are prepared to be honest. Moreover, research and experience shows it works best in partnership with independent legal advice. Parties are better able to negotiate if they understand the legal framework in which mediation takes place and if they can rely upon a professional adviser to protect their interests. The family lawyer should be available to give advice before, during and after mediation, not just in those cases where mediation is inappropriate or breaks down. Bringing lawyers in and out of the process on an ad hoc basis, like some kind of legal hokey cokey is a recipe for disaster.
But, the present system is far from perfect and we should have nothing to fear from many of the changes that are being proposed. I have been encouraged by what Lord Mackay has said about the valuable role solicitors should continue to play in the reform process. I believe those facing family breakdown deserve advice from lawyers who both understand the law and have the skills to carry out the work effectively.
Clients also deserve high quality mediation and efficient courts and court processes. No government can allow the legal aid budget to spiral out of control. The challenge is to find a way of making better use of the resources without restricting choice and threatening quality by imposing crude cash limits and making firms tender for block contracts. Access to legal advice for legal issues is essential if protecting the vulnerable and achieving just settlements are part of the objectives for a fair divorce process.
Nigel Shepherd is partner at Manchester firm Lace Mawer, and chair of the Solicitors Family Law Association.