Mediation and LIPs

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EXTRACT FROM soundoffforjustice website of 14 July 2011:

Today the Justice Select Committee launched a report on the Operation of the Family Courts. It is a good report well researched and it presents a series of options to help family disputes. It presents the role of mediation but also the limits of mediation in solving civil cases. Sound off for Justice has included mediation as part of the £360 million in savings that we believe we can make from the civil legal aid budget.

We believe that mediation does have a role to play – the problem is where and when.

On launching the Chair of the Justice Select Committee, the Rt. Hon Sir Alan Beith MP said:

“Many family disputes could be better dealt with by mediation than in a court. However, there will still be cases which go to court and there will be significantly more litigants in person following changes to legal aid. Courts are going to have to make adjustments to cope with more people representing themselves in what are often emotionally charged cases.”

The issue of ‘litigants in person’ and individuals representing themselves in court has been raised frequently recently. It needs some serious thought and discussion. This is dangerous territory for Sound Off For Justice and solicitors to get into. The immediate accusation is that we are only protecting the vested interests of lawyers and legal professions. Alan Beith MP made this point very eloquently in his interview on the radio this morning.

We have demonstrated in full that along with not having the most expensive legal system in the world that this vested interest is not one of motivations.

We can confirm this again today by providing the facts. The salary of a fully trained legal aid lawyer who has worked for 15 years is 25k. Only 4% of lawyers practice legal aid, this number has been going down over the last 16 years. Over the same period government figures indicate that the legal aid budget has been reduced.

If we do have a vested interest it is in protecting access to justice for the most vulnerable in society and the idea of Magna Carta. We believe that David Cameron and the government must put the victims at the centre of all the cuts to civil legal aid.

The idea of mediation and self-representation does indeed look good on paper as an area for cost saving from the civil legal aid budget. The reality is very different. We need to think long and hard about the use of mediation and the increase of litigants in person as a way to cut the legal aid bill. It is not the silver bullet to cost cutting. The risk is that it is simply a way of cutting cost in the short term to build up huge costs for the taxpayer and problems for victims in the future.

The issue was raised in detail by MPs sitting on bill committee this week.

Peter Lodder Head of the Bar Council and Linda Lee, President of the Law Society confirmed to MPS that mediation is something that both the bar and the law society invest a lot in training. Speaking on Tuesday Peter Lodder told MPs:

“You may be surprised to hear that, generally speaking, we do not like litigation, and if you have got to court, something has gone wrong. So any attempt to avoid that outcome is taken, and mediation is a particularly useful way of doing it. But, as I said a short while ago in answer to one of your colleagues, mediation helps only those who really want to do it’.

We are all agreed that we can make savings in the legal aid budget. Sound Off For Justice proposals will save more than the government’s target.

The reality unfortunately is different for a few real life reasons. To understand this reality MPs will need to listen more closely to the victims of domestic abuse, clinical negligence or unfair dismissal in employment who have to go and face the perpetrator of the wrongdoing across a court room. There are limits to the role of mediators and the work that they can solutions they can solve.

Deborah Turner, Convenor, Family Mediation Council, made this point very clearly to MPs earlier this week “Family mediators are extremely concerned about these proposals, yes. We can see huge pressures on mediators, not least the expectations of clients who have not had the legal advice that is so vital, as was said earlier. The big risk is that they will come to mediation expecting the mediator to be able to solve all the problems, to tell them what to do, to write it all up. Mediators are not trained to do that, nor should they be”.

This year Carol Sorer and the Legal Aid Practitioners Group (LAPG) have provided testament to MPs of women who have been in physically abusive relationships for ten or fifteen years. It is legal aid that get these women out of these situations not mediation.

These women have spoken openly and honestly how they are terrified to step in the same room as their abuser. Representing themselves is some thing they could simply not do. Sound Off For Justice has countless case studies where one would question if mediation would work. This is the evidence that policymakers must listen to.

If the right thing is to be done it is important that government, policymakers, legal aid lawyers and victims have a joined up discussion. These changes to access to justice are a generational change and will affect every community across the UK. If the wrong decisions are made the cost to the taxpayer will cost more than the cuts will save. The social cost and the impact on communities and the most vulnerable is unaccountable.

Under the current proposals there is a serious risk that the courts could grind to a standstill as hundreds of thousands of people represent themselves in legal cases, senior judges have warned.

The Judiciary made their voices heard in an unprecedented criticism of government plans to reduce the legal aid budget by £350m. They have said that removing funding from whole areas of law including divorce cases, social welfare, debt and housing would lead to an “inevitable” decline in the quality of justice in courts in England and Wales.

Lord Judge, the Chair of the judges council, made it clear that he ‘anticipates a ‘huge increase’ in the number of unrepresented litigants in courts. In a scathing attack on proposals to slash legal aid, they have warned that a massive increase in “litigants in person” – ordinary people appearing in court without a lawyer – will slow down the court system and may cost more money down the line.

“The proposals would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice… at a time when courts are having to cope in any event with closures, budgetary cut-backs and reductions in staff numbers,” the judges’ council, chaired by head of the judiciary, Lord Igor Judge, has said.

“There is a real question whether the cost savings arising from the proposed cutbacks in the scope of civil and family legal aid would be offset by the additional costs imposed on the system by dealing with the increase in litigants in person.”

Lady Hale in her speech at the Law Society in June added her concerns to the cuts in legal aid. The government has yet to respond to the criticism made by the Judges and magistrates who make the decisions in the cases.

In parliament yesterday, David Cameron said it was important the estimated 12,000 victims of the phone hacking are kept at the centre of the inquiries. We would agree with him and hope that he will support us in keeping the 725,000 victims of the civil cases at the centre of the current debate on legal aid.

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