Is Mediation of any real use? part 2

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There appears to be evidence to the contrary. Robert Dingwall published some time ago in the Journal of Social Welfare and Family Law, 32:2, 107-117 an article entitled Divorce mediation:should we change our mind?

The answer is "yes we should!!"

Is Mediation of any real use?

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One of the ConDems great ideas is to force legal aid clients to go to mediation. This already happens-so its not a new idea-but some how or other this time those who are on legal aid will have to complete mediation before even thinking of litigating through the Courts.

The reason for this is that the Government has been conviced by arguments from Mediators and supporters of mediation that it is cheaper, faster and better than litigation.

If you have money then you can avoid the Mediation hurdle and all you will have to say is that you have been told about it, thought about it and rejected it as an option.

I have no problem with Mediation. In effect that is how lawyers (good lawyers) conduct a case. They try to get their client to have sensible, realisable objectives.

Mediators would tell you that clients really love mediation, that if given the chance they would only ever choose mediation and that the reason that more people don't use mediation is because lawyers convice their clients against it because the lawyer will lose a fee. If this were the case then it doesn't really explain the rise in Collaborative Law.



The truth is that many lawyers don't have faith in the ability of Mediators to reach an agreement that is lawful. Experience teaches us that mediation for legal aid clients is a waste of time and a waste of taxpayer's money. There is also a problem created by the fact that mediation training appears not to be accredited by an independent body. I remember meeting one Mediator who told me that she could mediate any dispute at all.

Mediation has its place. Parties who do not wish to mediate should not be forced to do so. Litigation may well clear the air and the ground so that mediation can take place on final minor sticking points.

Mediators keen to promote mediation as being cheaper, faster and more effective (kinder to participants) can produce no research data to support this view. The truth is that Mediators are primarily after a monopoly so they can earn fees. Indeed if Mediation is so good one wonders why Mediators don't offer No Deal-No Fee terms of engagement?



One trait of Mediators is that criticism of mediation tends to result in an "you're only interested in your fee" retort when Mediators are in fact promoting a (compulsory) "alternative" to litigation which has failed to capture the public's imagination. Mediation was discussed in Parliament in 1948 when the Legal Advice and Assistance Bill was progressing through Parliament. It is not a new concept. One imagines that if it was so good that those who had gone through the process would have shouted the Good News from the roof tops and caused Solicitors and Barristers to change their views.

All I want to see is proper, independently accredited training for Mediators, proper evaluation of Mediators and independently researched evidence that it is cheaper, faster and better than litigation.

One would have thought that the Legal Services Commission would by now have gathered data on the effectiveness of Mediation and so could release that data in a report. Indeed they have-but only about In Court mediation, not pre litigation mediation.

"The in court pilot demonstrated some real benefits to clients. Where mediation took place 71% of clients reached some form of agreement.

However, the funding model trialled proved expensive, underlyng the importance of the government's aim to encourage people to consider and use mediation before their case goes to court. We are continuing to look at ways to increase public awareness of mediation and will be consulting upon the current list of exemptions available to solicitors to exempt their clients from the mediation assessment requirement. This may be able to help more individuals to receive information about the mediation process and decide whether this would be a more apprpriate way to attempt to resolve their family dispute."

There appears to be no evidence that making people go to mediation first will be effective-it is merely an aspiration. But there has been a system in place for a long time whereby those on legal aid had to go to mediation unless exempt. Where's the data?


 
 

The Divorce/Dissolution Process

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Jacqueline Emmerson, Senior Partner at Emmersons Solicitors

explains how the divorce/dissolution process works:

Even if a divorce/dissolution is going

to be straightforward I would always

allow at least seven months.

The procedure is as follows: The Petitioner, or

their solicitor, should advise the Respondent that

proceedings are about to be issued. It is considered

bad practice not to do so. The divorce/

dissolution petition is then sent to the court

together with a Statement of Arrangements for

children which sets out where the children will

live and how often they will see their other parent.

The court will send copies of the documents to

The Respondent. They then have fourteen days

to return their Acknowledgement of Service to

the court.

This is when things can slow down. The Respondent

may not be emotionally ready to be divorced

and may ignore the documents. If that is the case

then the court bailiff may be instructed to serve

the documents personally. If the Respondent still

ignores the procedure the court will be asked to

give permission for the matter to proceed without

input from the Respondent.

Sometimes the Respondent may object to the

allegations made against them and may consider

defending the divorce. This would be a very

costly option and one which the courts discourage.

If you accept that a marriage/civil partnership

is over then there is little point in defending

the petition. Why on earth would you want to

go to court and give evidence against each other

in relation to the private life that has been your

marriage or partnership? Imagine the stress and

humiliation of that! Instead ask your solicitor to

draft a short statement stating that whilst you do

not accept the allegations made against you, you

will not defend the petition.

At this stage there is often a dispute as to who

will pay the Petitioners costs. If the Petition is

based upon the Respondent’s adultery or unreasonable

behaviour then the Petitioner is going to

feel aggrieved having to pay court fees and their

own solicitor’s fees. Therefore the court is often

asked to order that the Respondent be ordered

to pay those costs.

Once the Respondent has returned the Acknowledgement

of Service to the court (i.e. their

response to the petition) the Petitioner can then

apply to the court for Decree Nisi. This is the

stage where the judge will confirm whether or

not he/she thinks that you have sufficient grounds

to obtain a divorce/dissolution. The judge will

also make an order in relation to costs and may

request further information about the care of the

children. Once the judge gives the go ahead your

case will be listed with lots of other divorces so

that Decree Nisi can be pronounced.

This is the public bit. If you haven’t informed your

family or friends that you have filed for divorce

you had better tell them now. The local press will

print the list of Decree Nisis pronounced, you are

about to be famous!

Once you have your decree Nisi you have to wait

six weeks and one day before you can apply for

Decree absolute.

A few words of warning: do not book your

next wedding until you have your

Decree Absolute in your hand!

Do not re-marry until you have sorted out

your finances using a solicitor.

Even if you think you have nothing to sort out

seek advice before remarrying.

Emmersons Solicitors

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Apparently there are a million houses not fit for human habitation, owned by private landlords. This is not news. Various reports have highlighted the issue.
The Government wishes to reduce access to legal aid. People who live in such awful conditions need access to money so they can pay a Solicitor to seek redress and if necessary fight for compensation.
Here's what the Government says in its Green Paper

We also consider that funding is justified for serious housing disrepair cases where the litigant is not primarily seeking damages, but is seeking a repair of such significance that without it the life or health of the litigant or their family may be at serious risk (such as the repair of gas equipment). Given the risk to health in these serious disrepair cases, we propose too that legal aid is justified for these cases.

If The Government is intent on changing the look and feel of legal aid then instead of adding in extra hurdles before legal aid can be granted-what does "a repair of such significance" actually mean?- I would suggest taking the Government and the Legal Services Commission out of this area (ie Housing Disrepair) altogether. I would also suggest that Local Authorities be paid 50% of all fines recovered arising out of their successful enforcement of housing repair regulations (just like the Police and HMRC in POCA proceedings).

Perhaps private landlords should pay into a scheme, administered by The Law Society, which will help fund cases for housing disrepair. If a percentage of damages paid out are also paid into the fund and if fees are fixed (as in Road Traffic cases) then there is certainty for all parties.
Failure by a landlord to pay into the scheme would result in a fine and an order for contribution to the scheme. Persistent re-offending would result in a criminal charge. Landlords would then realise the importance of making repairs. If they continue so to do then I propose a forced sale of the miscreant landlord's property.

If the Government is going to cut legal aid then it has to think of new ways to fund access to Justice-not propose partial funding in certain circumstances.

There needs to be a wholesale review of the justice sytems, of how they are funded and how access to advice and representation is funded.