By Mary Banham-Hall, mediator, MD of Focus Mediation
Historically the British Justice system has been the envy of the civilised world, copied and admired for its fairness, integrity and skills – BUT it has become unworkable, dysfunctional and is in dire need of reform. The courts and legal system are in a state of crisis and the government’s response is – cuts. One fifth of our courts are scheduled to close and there have been progressive increases in court application fees in recent years, in some cases they’ve gone up six-fold! So what do you do if you have a dispute?
The problem is the time it takes to sort out a dispute – and the fact that the costs can rapidly escalate out of all proportion to the financial value of the dispute. Some examples:
- A divorce case in 2015 with assets of £3m, where the legal costs were £930,000, nearly a third of the total – yet in divorces the value of the dispute is usually somewhere between 5% and 30%, as there is a starting point of equal division. It is rare for spouses to be fighting over 30% of their assets – so costs of this amount are out of all proportion to the value of their litigation.
- There are countless divorces where the costs are a massive proportion of the assets – modest assets of up to £300,000 where there might have been enough to house one or both parties but after litigation there is too little money left for housing.
- The dispute between neighbours about £4,000 of drain repairs where the joint costs were £300,000.
- A dispute between family members of no monetary value about the care of a man dying of Dementia in a care home – £40,000 of legal fees were run up writing letters and arguing, and when the case was referred to mediation it settled in a day. This is typical of many cases.
What is going wrong?
If we were designing a dispute resolution system today knowing what we now know about the psychology of conflict, it would be very different from the system that has evolved over the centuries. Basically the courts apply statute law and earlier decided case-law to the facts of individual cases and decide who ‘wins’. This leads to:
- Expense and delay collating, interpreting and debating the ‘evidence’ so
- The judge can decide whose ‘truth’ is ‘right’
- Endless adversarial debates between lawyers often in letters, Position Statements for court etc. etc.
- This takes months and years and costs more than it is worth!
- This adversarial system is calamitous to actually resolving disputes – despite that being its objective
There are courts rules designed to ensure cases are well managed – the Family and Civil Procedure Rules (‘FPR’ and ‘CPR’). There is an emphasis on the rule saying that costs must be proportionate to the value of cases, ‘The Proportionality Rule.’ Judges have costs estimates at every hearing and warn people they should settle, but parties don’t know how and think they can’t settle, so costs and delays can mount uncontrolled.
Fighting and Grief
People whose relationships have ended are frequently struggling through the stages of grief. Early effects of grieving are anger and blame – and this can make fighting via lawyers attractive and mediation feel very unappealing. However, mediation is NOT about reconciliation, it helps people work out how to part or solve their dispute in a very practical way. Fighting and litigation does not solve problems it makes them worse.
How mediation could help solve a multitude of sins
We know mediation is very successful at settling disputes – the percentages vary depending on a host of factors – but cautiously 60% and up to 90% or more succeed.
- Mediation is fast, with family mediation taking place in a series of short sessions over a few weeks and civil mediation taking a few hours to a day.
- As the disputants share the costs it is very affordable.
- Mediation is very flexible, so people can agree things a judge couldn’t order. For example, the continuation of a business relationship or some benefit a court could not order
- People are helped to realise that they don’t have to agree on the evidence of the legalities and will never agree who is ‘right’ – they can just do a deal and stop arguing
If you agree, join Mary’s campaign on Change.org (launches today) to modernise the outdated legal system
A simple amendment of the court rules could so easily help stop the madness endemic in the current system. Once joint costs reach about 20% of the approximate value of any case, it must be referred to a mediator so the parties can hear how mediation can help settle their dispute. This will impose a brake before it is too late and costs get out of control.
Putting the NHS right will require more money – we all know that. But making our existing court rules work will cost nothing – so if you agree with Mary do please go to change.org and vote for change: https://www.change.org/p/the-rt-hon-elizabeth-truss-costs