In the late 1940s, there was a crisis in this country, as many more couples were divorcing as a consequence of the second world war. Recognising something urgently needed to be done, cash-strapped governments, both Tory and Labour, introduced legal aid, recognising lawyers were the answer to the enormous problem and that those lawyers should be paid.
The strategy worked, but over time it was deemed too expensive, despite pared down rates.
Compare and contrast the response of recent governments, Tory and Labour, as they slowly reduced legal aid to almost zero for such couples. They rubbished the lawyers, attempted to make the public feel like failures for going to court, threw their lot into mediation, required mediation information and assessment meetings (MIAMs) and judicial gatekeepers on guard pre-issue of proceedings, poured billions into various incarnations of the Child Support Agency and closed tens of courts nationally.
None alleviated the problem, it got even worse. The public has voted with its feet – rejected mediation – and the courts are overrun with self-represented litigants. The pandemic has made the situation dire.
The major flaw of mediation is the inability of mediators to give legal advice. Many mediators are not even legally qualified, but that is no bar to the government. For a limited period for qualifying cases, £500 vouchers are being offered as an incentive to mediate serious issues, without legal advice. It is unsurprising that, no matter the carrots and sticks, the public prefers lawyers; and if they are unaffordable then the judges in court on a self-represented basis.
So, how about this? Four years ago, I wrote about the potential game changer of one lawyer advising both parties in a couple, openly, from the outset; helping them together, to resolve their issues. Our law is beautifully crafted to permit tailor-made solutions – there is no one size that fits all.
Nothing happened within our profession, but recently some innovative barristers have successfully done just that, to plaudits, and obtained a significant grant to boost their burgeoning practice.
It works. Writing elsewhere, I have had considerable support from family solicitors and members of the public.
The solicitors’ profession doesn’t always work fast. But the Law Society has a cracking new president and vice president who are determined to bring about change. One solicitor for one couple is an obvious possibility. It works. It will attract public confidence.
As a mediator myself, I can mediate a couple in front of me, but may not give legal advice. As a family arbitrator, I have the power to impose a legally binding order after both have appeared together before me. But can I advise the couple? That is the question and it needs urgent clarification.
Perhaps it will require rule changes and training, but that shouldn’t be insurmountable as there are many family law mediators, already ideal for a transfer over to advising the couple. It would be good to have support from the Ministry of Justice too.
Over to you, madam president and madam vice president. The family law profession will forever be grateful. More so, the public.
Marilyn Stowe is the retired founder of Stowe Family Law stowefamilylaw.co.uk....