Court Cuts – what kind of inquisition do you want?

Joshua Rozenberg posts an interesting story on legal and court aid cuts today. Mediation is (as ever) set to be trumpeted as a partial cure for the systems ills. This is, I believe, misguided and I also believe that Ministry of Justice Officials already know this. The evidence base on mediation essentially suggests this: mediation is a useful part of the dispute resolution toolkit, but it does not save costs and it is unsuitable for in tractable disputes. I was told recently that the MoJ had some time before the election commissioned an evidence review of mediation which, to the surprise and consternation of policy makers in the Ministry, showed that (and I quote hearsay and from memory here), “The evidence shows it doesn’t work”. Now that’s putting the case against too strongly, but mediation has for at least the last fifteen years been trumpeted as the false dawn on legal cost savings. There are other significant criticisms of mediation, but let’s save those for another time when the bottom line is less dominant.

The second idea is more innovative. “Where courts do have to be used, the government wants a more inquisitorial approach.” This is an idea which, in principle, I support. There is evidence from Ombudsmen schemes that a more inquisitorial approach can help correct power imbalances in a way which legal representation may or does not (see Sharon Gilad’s work at the LSE in particular). There is however a lot of devil in the detail. A structural issue is that in international comparative terms, spending on our courts is very low. This is the reverse side of our legal aid coin: we’ve spent more on legal aids and les son courts than comparator jurisdictions.

This means that courts are not set up to help litigants; and judges are not resourced or trained to do so. An inquisitorial approach demands a profound cultural shift. Judges have to be willing to reach across the bench and yet do so in a way which is, and is perceived to be, fair to both parties. My own research on litigants in person illustrated the difficulties judges faced in this regard and their own disquiet at the way in which unrepresented litigants impacted on the craft of judging. Court staff are inhibited from assisting because of prohibitions of giving legal advice: this prohibition quite literally puts them in an impossible situation. A landlord rings up and indicates they are going to put a tenant our on the street: what can a court officer say without giving legal advice?

There are lots of things that can be done for unrepresented litigants: assistance for litigants online, through workshops, duty schemes and through improved judicial training and support. These require investment, planning, and ‘buy-in’ from the judiciary. There is also the need to look fundamentally at the complexity of both substantive and procedural law: unrepresented litigants have zero chance of engaging effectively in legal proceedings unless the law and court process is simpler. It’s worth noting that one of the findings of my litigants in person research was that where parties were unrepresented some of the
judges felt at a disadvantage because they did not always know the relevant law and did not have the time or facilities to research it. If that problem is posed for judges, what are the chances for unrepresented litigants?

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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4 Responses to Court Cuts – what kind of inquisition do you want?

  1. Stephen G Anderson says:

    Hi Richard

    In what way could the promotion of the mediation process over the court process be misguided?

    As one of a group of in-court mediators in Ipswich, I see 80% of our cases achieve a successful outcome ( where s8 applications have been made and there are no issues which make the case obviously unsuitable for mediation). Well over 75% of cases are deemed suitable for mediation, so we’re getting good outcomes.

    In my practice as a solicitor, only one of children or financial case clients in the last 5 years has needed to make any sort of application to a court (other than for an order by consent), and only two clients have had applications made against them. Now I’m not saying that this experience could be every solicitors, but the widespread practice of so many of resorting to court, even if it’s to use the process as a timetable, is often the lazy way of dealing with a case.

    DIY, mediation, co-mediation, collaboration, round-tabling, co-operation, caucusing, phone mediation, arbitration, and interest-based solicitors’ negotiations through correspondence and phone, are some of the process options which are likely to be more suitable than a court application. Leave the courts for points of law, emergency orders and intractible disputes. It should rarely be the first port of call. Courts should be the alternative in ADR.

    Stephen G Anderson

    • Richard Moorhead says:

      Thanks Stephen,

      V interesting. It’s not the idea that mediation should (for suitable cases) be sequenced before litigation which I was concerned with. It’s the idea that it saves money which is thin on the ground. Building in compulsory mediation builds in transaction costs for cases that would have settled anyway. It also requires filtering mechanisms for unsuitable cases, which cost money. The fiscal question is whether this reduces costs overall (on cases which were litigated unecessarily). My understanding is that the evidence suggests it does not. That’s not to say there aren’t other reasons for doing it..

  2. Stephen Anderson says:

    Thanks for your reply. And I’m pleased that at least you’re not one of the old soaks who are living in the past!

    I’d say it does save money, though. Certainly in family cases. It saves money because the cost of negotiating a set of proposals in mediation is usually a fraction of the costs whic the parties would incur if they engaged solicitors to negotiate on their behalf through correspondence.

    It saves money also, because the cases that settle, tend to have good settlements, in other words, the couple may have learned a little better about how to communicate in their post-relationship roles. This is better for them, their families and the children. It means they’ve avoided court, which is much more expensive to run than a mediation practice, and are more likely to stay out of court in the future.

    As I said in my first comment, over 99 % of my cases over the last few years have settled before proceedings are issued. I’ve managed to achieve this through a combination of factors, but I’ll take some credit for actually applying my mind to each case and making sure my clients retain control of the outcome by choosing an appropriate process, rather than telling them what I think is best for them, fuelling their expectations and then leaving the outcome to a judge or another solicitor, heaven forbid. The last 5 figure cost case I had was a court case of 5 years ago. My divorce client had, somewhat unusually, her costs awarded. Even more unusually, they were assessd not taxed. My client did very well, but the process was a horror. I don’t make as much money from each case these days, but have fewer unhappy clients!

    So costs saved on legal aid, on lawyerss fees and court costs, on judges salaries and court administration, on NHS prescriptions and lost productivity from days off work to deal with stress or attend, on solicitors and court, on reducing the likelyhood of a private law disputes turning into publc law matters and so on. Does this persuade you at all.

    • Richard Moorhead says:

      Excellent points all, thanks! It is persuasive but only up to a point: it is precisely the argument that is habitually made in relation to mediation but the evidence does not tend to support. Compulsory mediation forces costs on all cases which have to be lower than costs savings from successful mediation. It may be that you are more genuinely decoupling mediation from litigation than was the case in the studies that have looked at mediation and that that makes it genuinely cheaper. It may be that the research base could be better or stronger (it is of course never conclusive). Compulsory mediation would also require enagaging practitioners who may be less enlightened than you in their approach. I think that’s a difficult process which will not necessarily save money. We’ll see!

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