Time for a rethink on helping separated couples, by Marilyn Stowe

Image: Public Domain, via Piqsels

If at first you don’t succeed…

The latest financial offering from the government, still apparently steeped in riches, but rather I suspect acting out of desperation, comes from the Ministry of Justice.

Post pandemic the pressure on family courts continues unabated, probably now worse than ever. 

Eligible separating couples are now being offered a voucher worth £500 for a limited period to pay a mediator to help resolve their domestic problems ‘out of court’ even though sorting out those problems is the purpose of the courts. And there is much (often complex) law to assist. 

I was never troubled by advising clients to apply to the court. In cases where agreement couldn’t be reached, I found that Judges applying the law, listened carefully to both sides, were calm commercial and courteous and provided an outcome.  It was the obvious route to resolve the dispute rather than months more of costly wrangling to get nowhere. 

However, with the reduction in legal aid (which used to be available with an affordable monthly contribution, even for medium level cases) many subsequently found lawyers too expensive. Unable to reach agreement direct with their partner, in increasing numbers they headed off unrepresented to court, with no clue about the law, wrongly assuming a Judge would befriend them and help them out, causing a backlog for all working across the entire court system. And when legal aid was finally all but decimated in April 2013 it became worse.

So mediation with a voucher with its aim of resolving cases out of court, in principle sounds all right doesn’t it?

Years ago it did at first, to me, minus a voucher, back in the mid 1990s, when legal aid was still fairly plentiful. The concept was so attractive to me, that along with others in my firm, I became one of the first qualified family law mediators in the UK. At some considerable cost, for one week we employed the late John Haynes, who was over from the USA, the much respected ‘godfather’ of mediation to train us up. At the end of that week, we were fledgling mediators and one of partners in the firm remarked he had learned to nod and say ‘yes’ in a very sage, empathetic manner. 

Because it had become apparent to us, there were one or two problems. Mediation did not have to be undertaken by a qualified lawyer. That is weird because mediators are not permitted to give any legal advice. Mediation is based only on providing assistance to people with no clue of the law. It is also purely voluntary and one or both of the couple could withdraw at any time. If one person didn’t wish to give disclosure or was bullying the other, it would end. A waste of time and costs all round. 

The anticipated rush of clients never actually materialised, despite the high numbers of separating couples in the mid 1990s, and despite the best efforts of government to encourage divorcing couples out of the courts and into the hands of mediators, legally qualified or not, it didn’t matter. 

Perhaps many people also noticed the obvious flaws and ever since, despite all manner of offers and even a legal requirement to consider mediation pre the issue of proceedings, it still hasn’t taken off.  

In the same way people prefer a dentist to extract a tooth rather than the more immediate ‘string and slam the door technique,’ the public wisely prefer lawyers to advise them on the law. Or if they are unaffordable, at the very least Judges. Until they discover Judges aren’t their lawyers. 

Nearly thirty years later, it seems the government has still learned nothing and they’re still flogging mediation. And now the family justice system has got quite a lot worse. It’s dire. Despite all the blaring sirens, Treasury imposed finance cuts worsened it all within the last decade, closing far too many busy courts, selling off those prime real estate locations and transferring work online. 

It's all caused a hell of a backlog, and I sympathise with all those judges who have no choice, grimly keep going, day in day out, online and off, as even more of those couples relentlessly keep coming, many with cases that shouldn’t have even got to court. And with solicitors advising the couple, they wouldn’t. 

It's time for a rethink!

May I respectfully suggest instead, the MOJ provides vouchers to the very people they would rather not, in order to be rescued? The lawyers. 

In 2017 I wrote a piece for the entire family law profession’s respected periodical Family Law, in which I suggested that lawyers should be able to advise a couple together, rather than one party in an adversarial role. I saw it cutting costs and most likely resolving their issues. 

I had often been asked when in practice, if I could advise both parties as I was the preferred lawyer of them both. I’m sure that wasn’t just my experience. Sadly then I could not. 

Yet, as their mediator, I could assist a couple but ridiculously given my day job, not give legal advice. As their family law arbitrator, they could not withdraw and I had the power to order disclosure from a reluctant party and I could legally divide their assets applying the law. 

It left me bemused that I couldn’t see a couple together in a more amicable setting and advise them when I knew all the parameters for a sensible cost effective resolution of their problems.

It struck me as bonkers.  

Now a few years on, there is a Barrister’s chambers who are very successfully doing just as I suggested, gleefully stating on their website, they can do what solicitors and mediators can’t, and winning awards galore for their innovation. 

Why not solicitors? There are more than enough family solicitors ready to help clear the backlog and swiftly help all those in need.

Rather than keep flogging vouchers for unpopular mediation, with all its obvious flaws, which in nearly 30 years has not appealed to the public, the Ministry of Justice and the Law Society/ SRA need to urgently get to grips with a concept that was not only an obvious way forward to me 4 years ago, but is now demonstrably succeeding, swiftly harness it and move with the times. All qualified family lawyers have the know-how and experience to advise sensible resolution, not only innovative Barristers who have had the gumption to seize the opportunity. 

If unqualified mediators with the government’s blessing are freely let loose on couples, why not encourage all family lawyers to legally advise the couple instead?