Nick Clegg has today asked us all to help the Government make divorce better. You can see the Family Justice Review Panel they have set up, here.
This could be a very complex subject, so to keep things clear I set out below some quick thoughts.
1. “Take the fault and blame out of divorce”.
We hear this a lot and it seems to be blamed upon the absence of “no fault divorce”. Where does that phrase come from? The present law is not about fault but about grounds. If anybody thinks that we ever see a client who hasn’t been blaming their spouse for weeks or months before they see us, they are living in Utopia!
The divorce process does not create blame; it is already there in society and in the media.
2. The divorce process...
... is not complex, many people DIY and there are many cheap options available on the Web from non-lawyers. But it is often misunderstood to include issues about child contact and residence together with sorting out the house, maintenance and so on. So, I suspect that education would be useful to manage expectations at an early stage.
3. Children issues.
I think the relationship between the parents (“parents for life not just for marriage”) is so important that mediation is an unanswerable argument. But should it be “required”? I think yes in the case of public funding—on funding grounds. In private cases, I suggest it should be a matter of choice but after education about its merits.
4. Ancillary (financial cases).
Going to a solicitor does not mean going to Court—not at all. Indeed it normally means the opposite for we reckon we mediate or negotiate about 90% of our cases so the people never set foot in a Courtroom. I think that is an incredibly impressive thing which is seldom discussed maybe as it isn’t newsworthy. Our average bill to all clients over the last year was £2130 (or thereabouts). This includes some very small bills and some massive bills for multi-million pounds settlements. So, the normal case would be quite low. The headline costs figures are the “mad” cases seen by Judges (they would be seen by Judges by the nature of the case) and mentioned in the media. Not relevant to normal people.
5. Mediation in ancillary work.
In my view too many variables here for successful mediation but in the case of the average legal aid case, they are likely to have relatively simple finances by their very nature and so I see the sense of mediation being required for public fund reasons. But note, what is “mediation”. See 4 above.
6. Lawyers and mediation.
I do think some lawyers need to understand mediation much more than they do. Mediation has a bad image within the profession and indeed whenever we suggest it (which is often) our clients who are a good cross-section of society.
I suggest a required training programme for lawyers on mediation, its benefits and costs and a required discussion (with notes) from lawyers with clients before being allowed to proceed. I also suggest a programme for mediators on how divorce lawyers deal with cases—see 4 above for example. There are too many assumptions both ways which harm relations.
7. The Court system
Why is it necessary for a Judge to have to pronounce a divorce in open Court? (It isn't. ) What a waste of time.
And please, please make these simple, small changes which will save weeks waiting for clients and added costs:
...make the Courts accept credit cards or credit account payments for their fees
...make the Court use and accept email---YES, it's true, at the moment they don't or won't!
Just think of how many stamps, envelopes and paper will be saved!