The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
This has resulted in numerous modifications to legal assistance for separating couples with further changes under consideration. The Civil Partnership Act and same-sex marriages have changed the way relationships are defined, while the Family Procedure Rules have altered how family cases are conducted. We are currently seeing a significant number of court closures, which limits an individual’s access to courts, and awaiting the potential changes the proposed Cohabitation Bill. The consultations taking place regarding ‘no fault divorces’ may also have implications for marriage itself.
When I qualified as a Family Solicitor in 2004 Legal Aid (support in meeting costs of legal advice from the Government) was still available for those separating couples whose circumstances required it. As a newly qualified solicitor I was very much on the front line. Legal Aid cases were considered to be the ‘bread and butter’ of family law with more senior solicitors often commenting that such cases were ‘good to cut my teeth on’. In retrospect, whilst perhaps not agreeing with the particular phrasing that was used, the volume and often complex issues involved in Legal Aid cases did provide me with a great foundation in law. It enabled me to run cases and experience issues in a way that is simply not possible today. The gradual erosion of Legal Aid for family cases has, alongside denying a whole section of society access to legal advice, also taken away a crucial tool for training the next generation of family lawyers.
The gap left by the removal of Legal Aid has been filled by alternative dispute resolution (ADR) – particularly family mediation –for many separating couples looking to resolve family disputes. Family mediation has, of course, existed for many years but has risen in prominence as more traditional routes have been closed. Consideration of family mediation (amongst other ADR options) is now required for anyone wishing to make an application to the family court. Although some exceptions do apply this means that the vast majority of family disputes are considered by a mediator in one way or another. The requirement for family mediation has brought family mediators right to the forefront of family dispute resolution.
I am one of very few Accredited Family Mediators working in the Birmingham area – completing my training in 2012 and receiving my initial accreditation in 2015. As both a family solicitor and mediator I have seen first-hand the evolution of family dispute resolution system.
Since training as a family mediator I have been conscious of the need to differentiate the two roles and acknowledge the distinctions between the disciplines. The need to do this was emphasised during my foundation training and subsequently when seeking accreditation. Many in my position are advised not to call themselves 'solicitor mediators', in part so as to re-enforce the separation between the roles that mediators and solicitors play. Learning to distinguish the roles is a skill in itself however I, and my colleagues, do feel that as 'mediators with a legal background' we provide added value to clients and can ‘bridge the gap’ in a way that the Government intended.
A clear example of our value comes when one or more parties are either unrepresented or have received only limited legal advice. Whilst careful never to express opinions or offer any legal advice, within mediation we offer parties the option of a short explanation of what to expect from the Court process, should mediation not be successful. Often parties may have had some information that is incomplete or wrong. Providing information in a neutral manner and in an informed way gives parties not only insight into what to expect but also an opportunity to reflect on the pros and cons of not making final decisions within mediation.
Our experience also provides assistance if parties query issues of variation or enforcement. Explaining these principles in an impartial manner allows both parties to hear the same information, something distinct from partisan information that the parties may have already received. We see such explanations as a useful tool in assisting parties to make amicable arrangements within mediation.
As family solicitors we are only too aware of the legal costs associated with court applications. We find that when explaining processes; giving estimates of likely legal costs at each stage of the process, giving parties time to reflect on those costs and how they may be spent differently again, encourages parties to seek amicable solutions. Even if a solution isn’t found within mediation, such information forewarns parties about costs and encourages them to achieve settlements more quickly, even if court is unavoidable.
Where there are assets, such as family businesses or pensions, our knowledge and experience of complex financial issues can help. Again providing information about how a court would approach such assets, their values and how the same may be determined enables parties to develop options for themselves and reassures them that they are considering court-endorsed solutions and approaches.
On reflection it appears that Family mediation has in-part filled the gap left by Legal Aid. It seems that as a 'mediator with a legal background' although very different, there are echoes of where I found myself back in 2004. Whilst the issues may be different and the assets can be much greater, mediation, like Legal Aid before it, is now the first port-of-call for the majority of separating couples.
For more information
Please contact Chris Lloyd-Smith
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