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Family Law Blog

Comment on divorce & family law 

Is mediation helping in shadow of Legal Aid reform?

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The likelihood of Legal Aid reform continues to be a big issue. Cuts of up to £350 million in the system would see the option of Legal Aid removed for many people in divorce proceedings, with victims in domestic abuse cases, for instance, among a very small group of people who will still be able to seek help with funding. The profession has voiced fears that the measure is being railroaded through despite strong opposition in a public consultation. The aim is to cut costs, as is the recent change which insists couples consider mediation before seeking court settlements at the end of a marriage.

From a personal viewpoint, Woolley & Co does not accept Legal Aid cases so you would expect me to not be too concerned. However, I am, largely out of a desire to see our sector helping people in real need rather than out of any commercial consideration.

We have seen a rise in people wanting help but who cannot afford it. This is starting to lead to more people trying to reach agreements through mediators – but mediators can charge as much as lawyers, so who is really better off? “Legal Aid mediators” – ie those who offer the basic service and to whom parties are pointed if they were seeking Legal Aid – tend to cost about £40 per hour. However, I believe they are unable to handle anything more than the most basic settlements. Throw in a pension or a business for consideration, and they may well not be best placed to serve the client.

As Legal Aid support is withdrawn, there will be more people who perceive they cannot afford legal representation in divorce, which is wrong. If you ask the average person how much the average divorce costs, they might say £20,000. It is actually about £4,000. The misconception is fuelled by celebrity divorce. In my career I have only ever seen one bill anything like £20,000. It is not necessarily an expensive process unless you have a big court case. Most cases do not go to court.

Mediation certainly isn’t a panacea. Real understanding of what mediation is all about is still limited. Anybody can be a mediator and as yet no concrete guidance on “approved mediators” has been introduced. Put simply, mediation is sorting out a divorce without having a big row in court about it. The fact that seems to be ignored when mediation is suggested as a novel solution is that the vast majority of divorce and family law cases don’t go to court. They are resolved between the parties, often with the help of their solicitors. Good solicitors don’t look to create a battle, instead they look to achieve a fair settlement in the case of financial cases or a the right solution for the children of a marriage.

Public perception might be that mediation is cheaper than a traditional route but our average bill for a divorce, including the legal ending of the marriage, financial settlement, arrangements for children and court fees is probably not far over £4,000. It is nothing like what people perceive. Even where mediation is used there’s still the need to ratify any agreement and pay the relevant court fees. So whilst mediation may be a useful method of helping the parties to come to an agreement, it’s not the only way that agreements can be reached and caution should be used by those who think mediation is the cheaper option. Do make sure your mediator is suitably qualified and experienced and be clear that the settlement you agree is ‘fair’, otherwise the lower cost may be quickly off-set by the financial loss you could experience by not having your financial interests adequately represented.

Andrew Woolley
Family solicitor

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