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Why our legal system is the medicine that’s killing the patient.

Why our legal system is the medicine that’s killing the patient.
Submitted by
Wikizine Team

Family lawyer and mediator Mary Banham-Hall has launched a Petition on Change.org asking for the existing court rule that legal costs must be proportionate to the value of the dispute to be made to work. Her ultimate aim is to shorten the litigation process – which sometimes goes on for years – and to stop ballooning legal costs.

The Problem 

Our Court system has evolved over the centuries with no particular plan in mind. Today, our understanding of the psychology of conflict and how to resolve disputes has been transformed through a growing understanding of human behaviour, especially the behaviour of people in conflict. It seems incredible that we are still operating under the old Common Law, statute interpreted by case-law, as adapted over the decades. This can only be because it is so hard to get people to change, as it is not the best way of doing things. Our system is dysfunctional, no longer fit for purpose and needs to be made to work for the people who have to use it.

Some examples:

A divorce dispute where one spouse offered £100,000 to settle their ex spouse’s claim – the legal costs reached a total of £430,000 before the original offer of £100,000 was eventually accepted

  1. The many divorce cases that go to trial over modest assets of about £100,000 and a vast proportion of the assets go on legal costs – why is this not stopped?
  2. A divorce in 2015 where the costs were £930,000 and the assets £3m – nearly a third of the family’s money went in costs!
  3. Countless cases where parents are fighting over their children, who are growing up in a war zone, damaged by the conflict, which litigation makes so much worse.

There is an absurdity in lawyers’ letter-writing and litigation – but often those involved in it cannot see this, because this is how it has always been done; the Law requires a proper investigation to achieve ‘justice’ and it costs what it costs. Importantly, the system does not have an inbuilt brake to stop costs escalating and so it continues like a mad tarantella. This is why justice as it now exists is the legal medicine that is killing its patients. 

Applying a brake to a runaway train

We know that mediation is extremely successful at resolving disputes.  Mediation has a success rate of between 60% and 90%, dependent on various factors, but tragically many disputants are focussed on the rights and wrongs of their dispute, on the evidence and who is telling the ‘truth’ and who is not. They genuinely believe that they must battle trying to ‘win’ and while this goes on they may both become losers, because it all simply costs more than it is worth! The fact is people can still do a deal in mediation, however angry they are, and they do not have to agree who is right and wrong since they will rarely be able to  agree on the ‘truth’ – with mediation this is simply not necessary.

If disputants were sent to a mediator before costs have escalated out of proportion to the monetary value of the dispute, they could agree a deal and get resolution at a proportionate cost. Lawyers - and especially judges - who are bound to follow the Family and Civil Procedure Rules (‘FPR’ and CPR’) should make sure this happens but at the moment they don’t.  Lawyers are skilled at the Law and legal resolution, using a system of adversarial argument that fuels the conflict that in turn fuels the litigation, creating a vicious circle, until the broke and exhausted combatants come to their senses, if they do.

Benefits of Mediation

  • Family mediation is fast, taking place in a series of short sessions over a few weeks
  • Mediators help people understand their situation, each other and their options in a problem solving way, calming things down and focussing on the future and not on past wrongs and fighting
  • Mediation is a great reality check on a host of issues and a chance to lay down arms and sort everything out with a skilled, trained facilitator who understands conflict and basic human behaviour and psychology, which is at the root of many seemingly legal disputes
  • Almost endless options are available in a mediated agreement. So long as it is legal the parties can incorporate what terms they want, including a new contract or a totally random term that makes the deal attractive to them. In comparison a judge has a very limited range of options he or she can order at trial.

So I am campaigning for change. The existing court rule that says costs should be proportionate to case value must be made to work.  My Petition asks that once joint costs reach 20% of case value they should be automatically referred to an accredited mediator. Many disputes would then settle in mediation and people would start to think differently about how to resolve their arguments which would be a massive change for the better. 

For more information and to view the petition please go to : https://www.change.org/p/the-rt-hon-elizabeth-truss-costs

About Mary Banham-Hall: Norwich-born Mary Banham-Hall graduated from UCL (Law) in 1975, was admitted as a solicitor in 1979, and became a mediator in 1998. She has spent the majority of her professional life helping couples navigate the trauma of separation and divorce. Mary now dedicates most of her time to mediating and running her company, Focus Mediation, which she set up in 1999, and which specialises in Alternative Dispute Resolution. She has previously written a novel: "Love, Lose, Live" and you can read a review of that book here - http://www.wikivorce.com/divorce/Wikizine-People/Interviews/Book-Review-Love-Lose-Live-Divorce-Is-A-Rollercoaster-by-Mary-Banham-Hall.html

*Editor's note -  this article is for information purposes, sharing the petition is not necessarily an endorsement by Wikivorce. 

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