Marilyn Stowe: Arbitration is best solution in family law cases

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SIXTY five years after the legal aid system was created, one in four people believe the Government’s latest cuts and changes being driven through by Justice Secretary Chris Grayling are going too far.

To coincide with the 65th anniversary of the Legal Aid and Advice Bill receiving Royal Assent, the Legal Action Group (LAG) published the results of opinion polling research which shows a lack of public support for the cuts.

Their first poll was conducted in April 2013, the month in which the Government’s Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act was introduced. A follow-up poll was conducted in April this year.

Last year, 34 per cent of adults aged 18 and over in Great Britain agreed that legal aid should be cut as part of the deficit reduction programme. Twelve months later only 23 per cent agree. In 2013, 44 per cent of people disagreed with the statement that legal aid should be cut to reduce the Government’s deficit compared to 49 per cent this year.

The level of support for the Government’s position has been declining even further over the last year. Citizens Advice has already picked-up this baton. They reported to the recent Justice Select Committee that nine in 10 of their bureaux have nowhere to refer clients to who need specialist legal advice.

Efforts to offer mediation as an alternative form of dispute resolution are not popular with the public. Even though legal aid is available in divorce cases for mediation, there has been a 38 per cent drop in the number of cases resolved this way.

My answer is family arbitration. Currently available only for financial disputes, it could easily extend to child cases too.

Unlike mediation, arbitration is not toothless. It is overseen by a solicitor, barrister or ex-judge who has been certified as an arbitrator. The biggest advantage it has over mediation is that the decision is enforceable by law. In this respect, it has the same power as a decision made in court but need not require the same effort and expense.

If properly funded and promoted, it would be a more viable alternative to the clogged up family courts. People are trying their luck at representing themselves in court since they cannot afford a solicitor and do not qualify for legal aid. Fewer people would try to navigate those difficult waters if they had a better alternative.

There are countless stories of people trying to represent themselves, and failing. Ditto of frustrated judges and wasted court time. Our legal system cannot function without lawyers wheeling the oil. Without legal aid, people cannot afford to pay a solicitor to face the court on their behalf. This includes more than half of people attending children’s cases.

The courts need help. This seems obvious to anyone with an interest in family law and justice, yet the Government continues to insist that mediation is the only answer. It isn’t.

Family disputes are often bitter, especially where children are involved. People can become very stubborn, which can make reaching a mediated agreement very difficult. In some cases, a spouse in a weaker position, perhaps a stay-at-home mother, may be intimidated into accepting a deal which is wholly unfair. Or she may give in to a manifestly unfair arrangement which adversely affects the rest of her life and throws her needlessly onto state benefits.

We have seen a 38 per cent drop in mediation since the legal aid cuts came into effect, and the problems of the overcrowded court system continue to worsen.

The Legal Aid Group, however, has calculated the Government’s Legal Aid Agency is underspending its allotted budget. It declared that “less than £100m of the underspend could restore the cuts to social welfare law” and said that funds should also be targeted at family law. The latter would, they added, “need to be targeted at the litigants in person now jamming the family courts system”.

With the money there, let’s extend legal aid for all family law cases to be arbitrated. In 2012, I was one of the first people in the UK to qualify as a family law arbitrator and I am now a member of the Institute of Family Law Arbitrators (IFLA) and the Chartered Institute of Arbitrators (CIArb). I know first-hand that it works.

Arbitration, if available for those requiring legal aid, would be a much more viable alternative to the clogged up family courts. Fewer people would try to navigate those difficult waters if they had a better alternative. Arbitration guarantees an outcome.

There can be fixed fees, a tight timetable and the procedure short-circuited. It would be completely private, with no overpowering court room. Once couples agree to engage in the process, they cannot back out. There will be a legally binding award, come what may, which is enforced by the courts. It’s a win-win all round.