The new buzz word of the moment in some legal circles is "unbundling" but could it all lead to matters "unravelling"?
The concept essentially is to offer clients the option of doing parts of the work themselves and paying a Solicitor either for discreet pieces of work or defined parts of a matter.
I can certainly see the benefit to the client in terms of limiting costs but I do think both sides need to be careful that matters don't end up more complicated with the case suffering as a result.
This idea is being discussed over a number of different areas of law but I shall focus on family law, as it is the one I am more familiar with.
Take Divorce as an example. What I mean by that is what lawyers refer to as the "main suit", the paper-process that takes a person from "married" to "divorced". Often misunderstood by clients as encompassing all issues, finances and children as well.
That process is fairly straightforward - yes there are some points that need to be discussed/negotiated but if a Divorce is to proceed undefended i.e. no answer filed by the Respondent (which is not the same as someone disputing what is said about their behaviour but nevertheless agreeing that the marriage has come to an end) then the reality is that the process is defined and why should we not, as lawyers, be able to offer a fixed fee or "unbundled" service to clients?
The level of fixed fee will depend on how much work a client wants to undertake themselves. I know, if i am to do all of the drafting for a client, what is involved and how long it will take me. If a client is being guided by me but undertaking the drafting themselves then there is less certainty about how much input they will need from me in terms of the paperwork.
There has been much discussion about how we can tell whether a client is capable of undertaking the necessary work, how much they understand and whether them undertaking work themselves may put other aspects of the case in jeopardy - that may well be relevant if the client is left to their own devices, entirely unguided or perhaps in other areas.
My view is that each client has a particular relationship with their lawyer and lawyers should be sufficiently adept at client care and client contact to establish a good relationship with each of their clients. It is a matter for discussion between the Solicitor and client as to how work is divided and whether indeed the client wants to do any of the work themselves.
I have had no difficulty with clients opting for our "Guided Divorce". I am clear with them at the outset about our respective responsibilities in terms of paperwork etc. and understand from their feedback that the option of controlling costs by undertaking the preparation of papers themselves has been helpful. Clients feel that they are able to work this way because they know that they have my guidance throughout.
In terms of other matters, I can see that it may be difficult to "unbundle" financial negotiations for example or negotiations concerning child arrangements.
That is twofold, to ask a Solicitor to work on a discreet piece of work, perhaps the preparation of a statement for example, can in fact be counterproductive - the Solicitor will not have been privy to the detail of negotiations and will be unable to advise in the round to ensure that all areas are covered and that the client understands their position and any risks that they face.
This causes a difficulty for lawyers, who are inherently risk averse, because we feel that we are left open to suggestions that we have not fully advised the client about the various possible outcomes or their risks, that there might be some claim raised against us etc. etc.
In addition, fixing a fee for negotiations is difficult because the length and depth of work is an unknown at the outset.
That said, I can see no reason why costs for defined stages of proceedings cannot be set in bands with detailed information given about what that "band" involves. That leaves the client clear about the level of costs that they will incur up to a certain point and allows the Solicitor to work on the matter throughout and not piecemeal, which satisfies us as regards our duty to fully advise etc. etc.
I think the reality is that decisions as to whether firms operate this way going forward will be business decisions and the level of fixed fees, "unbundling" or banded fees will need to be carefully assessed and clear letters to clients detailing the extent of the work being undertaken by the firm and by the client respectively.
The legal landscape is changing, fast, and I do think that more flexibility is required and will be demanded by clients - perhaps especially after the 1st April.
This is a brave new world of legal services but who will have the courage?
Showing posts with label Costs. Show all posts
Showing posts with label Costs. Show all posts
Wednesday, 27 March 2013
Monday, 18 March 2013
Legal Aid Cuts fast approaching
Wow,
February has totally past me by I’m afraid – hence the lack of any blog posts –
apologies.
Recently, I
have been amazed about the lack of understanding that there is generally by the
public about the forthcoming cuts to legal aid and what that will mean for
couples separating after 1st April.
I am often
asked by friends, family and professional contacts “how work is going” and I
have spoken with people recently about the challenges that family law as a
whole will face in the coming months/years.
More often
than not, people are surprised to hear that from April there will no longer be
legal aid available for family law matters, save where there has been Domestic
Violence – subject to the client being able to provide the necessary evidence
of that – or for Care proceedings.
This was hit
upon in the press when it was initially proposed but seems to have been lost
amongst other news and has not been highlighted for some time now.
Essentially
it means that the vast majority of separating and divorcing couples will no
longer be able to access legal aid to fund their matters. It is estimated that this will be about 85% of
those cases currently benefitting from legal aid.
It will mean
that for couples facing separation or Divorce where there has been no Domestic
Violence that they face some stark decisions about how to progress with their
Divorce or Separation.
These may be
couples with many assets, no assets but a lot of debt, couples facing disputes
over the arrangements for their children or any other situation in between.
To represent
yourself, perhaps especially in cases concerning arrangements for the children
but equally in cases involving the division of marital assets, is stressful and
frightening. Whilst a Judge will be available to manage the Court process and
explain some of the procedure to couples once proceedings have started it is
not the Court’s job to present any one party’s case or advise about the merits
of their arguments. Outside of the Court process people may feel entirely alone
and unsupported.
In the event
that one party has resources to fund legal representation and the other does
not, it can leave an imbalance in power in terms of negotiations and is likely
to see many more cases progressing to Court proceedings and thereafter to
contested final hearings, as a result of negotiations being ineffective.
The Family
Courts have principles and checklists to follow both in terms of cases
involving children and those concerning the division of marital assets. Add to
that the volume of case law, some of which binds and some which informs the
Court’s decisions, and it is easy to see that the self-representing litigant
may come unstuck.
So…what are
the other options:
1. Research
There are a
number of online resources available now that will explain the process of
Divorce and the issues that you will need to consider on Separation. You may
undertake some research and go it alone.
Consider – a lot of these resources provide
only brief information about the paper process of Divorce and fail to fully
explain important issues around finances or child arrangements.
Be wary of
advice from friends or people down the pub – they may be well-meaning but
frequently have their own perceptions or experiences colouring their view.
2. Mediation
To be
invested in heavily by the government over the coming years, Family Mediation
is a process whereby couples attend joint sessions with an independent Mediator
to discuss the various issues faced on separation – try to resolve their
financial affairs and try to agree arrangements for the children
Legal aid
remains available for Family Mediation if you pass the financial assessment.
You may self-refer or be referred through a Solicitor.
Consider – if you are not eligible for legal
aid then you will have to pay for each session of Mediation, although this is
often more cost effective than full blown negotiations through Solicitors and
can help narrow the issues.
Even if you
reach agreement through Mediation, you will need legal advice to ensure that
your agreement is legally binding – the Mediator will be able to point you in
the right direction and look out for Partnership Schemes between Solicitors and
Mediators that will fix fees for you – there is one in Worcester for example.
3. Middle ground
Some
Solicitors offer a middle ground option in terms of Divorce proceedings which
will see you doing some of the form filling and correspondence yourself whilst
you are guided through by the Solicitor dealing with your case.
This has the
advantages of you being certain of your next steps but controlling the costs.
Your Solicitor will also be able to advise you about any ancillary issues so
that you are clear on your option.
Consider – there will be a cost to this option but it
should be less than asking a Solicitor to fully manage your Divorce proceedings
– expect to pay about £350-£400 + VAT and Court fees of £385.
4. Free initial consultations
Useful and
offered by most Solicitors now, this initial form of consultation should allow
you to gain some information about procedure and the important issues in your
particular case. It is more tailored to you then generic information that you
may find online and you can access it without obligation
Consider - it may leave you informed but more
concerned about representing yourself going forward. Frequently people who
attend to see me for an initial consultation feel clearer on the issues and
their options but feeling that they will need support and guidance going
forward. That is not really a bad thing, better to be informed early on.
5. Instruct a Solicitor
The plus
side to this of course is that you will have a legal professional guiding you
through the minefield that can be Divorce, someone to support you and protect
your best interests and someone to advise you about which of your arguments are
strongest and which are perhaps fuelled by your emotions.
You may wish
to consider instructing a Collaborative Solicitor, and follow the Collaborative
law process.
Consider – there is clearly a cost to
instructing a Solicitor but you should be provided with detailed cost estimates
at the outset and updated about any costs throughout.
Several
Solicitors now offer fixed fee packages or banded costs – so that you know what
your costs will be at each stage of the process. You may also be able to agree
a capped fee with your Solicitor at the outset.
There may be
sources of funding open to you and there are a couple of organisations that
offer loans to cover the cost of financial negotiations and proceedings on
Divorce. Be sure to take financial advice and be clear on the terms of any
loan.
Whichever
option is chosen, Divorce is a difficult and stressful time for all involved,
if possible choose an option that will help you minimise the strain.
Wednesday, 30 January 2013
Costs and control in Divorce
So February is nearly upon us, scary - one month down!
I have struggled this month with diet, exercise and all the new year resolution type things that I was to do but all of that pales into insignificance when I meet new clients struggling with all of that, normal life, children and the prospect of a separation.
Many have been happy that finally they have felt able to do something about the feelings that they have harboured for a long time but even when people have plucked up that courage and taken that step they find themselves trying to deal with a process that is alien to them and the costs that come with it.
I have read in several places over the last month or so that Divorce costs £10,000+ (I have seen that as a statement in itself with no qualification about the level of assets or complexity of the case).
Now whilst I accept that there are some cases that are complex or very contested and which attract alot of legal costs, there are many more that are relatively straightforward and that should not attract anywhere near that amount. It worries me to think that there are people who will shy away from getting the legal advice they need to make an informed decision because of scaremongering about costs.
There is a cost, of course, to obtaining specialist legal advice on Divorce - much as there is a cost to having your car fixed or taking financial advice - but there is also a value to that advice - be it in peace of mind, protection of assets or security for the future.
People going through the process of separation or divorce want control, they want fairness and they want to feel that they are not lost and that they have direction - that is fine but often the sticking point is cost.
In late 2012 I entered a Mediation Partnership with Mediation Worcestershire, along with a few other Solicitors in the area. The concept is that people who attend Mediation to resolve their differences but who naturally require legal advice at some point in that process, will be able to turn to members of the Partnership for that advice at a fixed cost.
The aim is to make sure that couples who are separating have the benefit of control through the Mediation process with access to the specialist legal advice that they need at a cost that is clear.
I am imensely pleased that as a profession as a whole we are trying to ensure that access to legal advice remains open and never will this be more important than post April 2013, when the availability of legal aid for family law cases will be abolished, save for those cases involving Domestic Violence or Care issues.
I know that there is a cost to bear for legal advice but I hope that as this year progresses people do not leave themselves counting the cost of not having had it!
I have struggled this month with diet, exercise and all the new year resolution type things that I was to do but all of that pales into insignificance when I meet new clients struggling with all of that, normal life, children and the prospect of a separation.
Many have been happy that finally they have felt able to do something about the feelings that they have harboured for a long time but even when people have plucked up that courage and taken that step they find themselves trying to deal with a process that is alien to them and the costs that come with it.
I have read in several places over the last month or so that Divorce costs £10,000+ (I have seen that as a statement in itself with no qualification about the level of assets or complexity of the case).
Now whilst I accept that there are some cases that are complex or very contested and which attract alot of legal costs, there are many more that are relatively straightforward and that should not attract anywhere near that amount. It worries me to think that there are people who will shy away from getting the legal advice they need to make an informed decision because of scaremongering about costs.
There is a cost, of course, to obtaining specialist legal advice on Divorce - much as there is a cost to having your car fixed or taking financial advice - but there is also a value to that advice - be it in peace of mind, protection of assets or security for the future.
People going through the process of separation or divorce want control, they want fairness and they want to feel that they are not lost and that they have direction - that is fine but often the sticking point is cost.
In late 2012 I entered a Mediation Partnership with Mediation Worcestershire, along with a few other Solicitors in the area. The concept is that people who attend Mediation to resolve their differences but who naturally require legal advice at some point in that process, will be able to turn to members of the Partnership for that advice at a fixed cost.
The aim is to make sure that couples who are separating have the benefit of control through the Mediation process with access to the specialist legal advice that they need at a cost that is clear.
I am imensely pleased that as a profession as a whole we are trying to ensure that access to legal advice remains open and never will this be more important than post April 2013, when the availability of legal aid for family law cases will be abolished, save for those cases involving Domestic Violence or Care issues.
I know that there is a cost to bear for legal advice but I hope that as this year progresses people do not leave themselves counting the cost of not having had it!
Tuesday, 2 October 2012
Irreconcilable Differences?
Several clients of mine have
recently spoken to me about divorcing on the basis of “irreconcilable
differences” and even one of my colleagues mentioned the concept (his area is
not family law).
I was forced to explain to all
that the only ground for divorce in England and Wales is the irretrievable
breakdown of the marriage. I also explained that this ground must be supported
by one of several “facts” – behaviour, adultery, 2 years separation with the
other’s consent, desertion or 5 years separation.
Whilst going through the
explanations and answering the questions that ensued, it stuck me that their
misconception about the divorce process and the ground for divorce in this
country had almost certainly come from watching US dramas/reading articles
about celebrity divorces in the papers – almost all of which mention one party
“citing irreconcilable differences”. Fine if you are divorcing in the US.
Of course no-one should or
would have reason to know the ins and outs of the divorce process in this
country unless they were practising family law or had been through the process
before but it did make me wonder where people seek out information when they
are faced with separation or divorce – especially given that these clients were
adamant that the information was correct and that their planned course of
action was the right one.
At such an important and
emotionally charged time in their lives, are clients prepared to avoid UK
solicitors at all costs and instead rely on pieces of information picked up
from friends, TV, the media etc.
I can only say what I said
when faced with those clients and my colleague – you wouldn’t have a look
around online to obtain bits of information and then have a go at extracting a
tooth, plumbing in a bathroom or fixing a car – at the very least you would
obtain some expert advice.
It is perhaps our fault as a
profession that we have not appeared approachable enough, have not educated
sufficiently and have not done enough to change the perception that people have
about the costs involved.
That is surely now coming to
an end with the entrance of ABS and certainly costs and accessibility are
becoming a point of difference between firms.
Fixed fee options, free
initial consultations, DIY divorce packs, factsheets etc. are all services we
have developed to educate people and enable them to regain control of costs and
action at a time when most feel that they are spiralling out of control.
I believe that many in the
profession are doing what they can to make access to information and advice
easier and less intimidating for clients but, for things to get better, there
must be some change of culture… some general consensus that it is better to
obtain expert advice before taking action and that Solicitors are not all smoke
and mirrors and actually have some expert knowledge and value to give.
Without that change, I fear
that people will continue to shy away from seeing a Solicitor and take action
on the basis of the piecemeal (often incorrect) information that they pick up
or are given by well-meaning friends – lessons might be learnt when things go
wrong and legal advice and action is needed to right it but that is far too
late and can be more costly in the long run.
So…. don’t struggle alone or
worry about what you are or are not doing….contact Solicitors’ firms and I am
prepared to bet that the majority will offer free initial consultations or a
fixed fee initial appointment….get the correct legal advice before taking
action and ask solicitors whether they do fixed fee services….some already do
and in the long run I suspect that this will become more common.
Tuesday, 28 August 2012
Adultery & Divorce
I was thinking about this
issue the other day, after a client had mentioned to me that she had discovered
that her husband had been sending less than appropriate messages to another
women and that she had plans to arrange for him to be “caught out” by
effectively turning up at his hotel room door.
I advised her to stay well
clear of any hotel room doors and there was certainly enough other aspects of
his behaviour that she could use to formulate a Petition, which was the course
she was set on.
In the end she conceded and
agreed that however strong and indignant she felt now, that would soon be
forgotten when she was faced with the reality.
But it led me to thinking
about adultery in the context of Divorce proceedings and whether it’s worth it
– not the adultery (which almost never is!) but relying on it to issue
proceedings.
Don’t get me wrong, certainly
there may well be times when there has been no other “behaviour” to rely upon
and adultery may well be the only feasible option or where it might be
important to prove adultery – perhaps for some cultural reason or where a
pre-nuptial agreement might be affected.
The majority of cases,
however, will involve some other behaviour by the Respondent, perhaps a
distancing from family life, a lack of affection or physical relationship, a
lack of emotional support etc. The
behaviour might well be as a result of the Respondent conducting an extra
marital affair (not always!) but all of it can be used to issue a Petition
based on behaviour and not adultery.
But why is that
better.....well adultery must be proven or admitted in order for a Divorce to
progress on that basis. If the Respondent is not likely to co-operate in
proceedings and actively admit his/her adultery then proof it will have to be.
The sexual act of adultery is
what must be proven – an inappropriately close relationship is not sufficient!
That makes it very difficult (and costly) to prove – not least in terms of
emotional cost.
So is it necessary to rely on
adultery…..sometimes tactically and sometimes morally but my advice would
always be to consider another option, especially if your spouse is not likely
to co-operate!
Thursday, 21 June 2012
The Divorce Hotel – where checking in can lead to a quick exit?
Already up and running in 6
“high-end” hotels in the Netherlands the “Divorce Hotel” concept may be making
its way to our shores in early 2013 if its creator has his way.
The idea is that couples
wanting to separate amicably and quickly check in on a Friday (into separate
rooms!) and over the course of the weekend negotiate their marital finance
settlement, children issues and Divorce with the help of mediators and lawyers,
who are provided as part of the flat fee package (I shall leave aside the
issues about how experienced the lawyers may be – vis a vis fitting it all into
a fixed package, the choice of lawyer and whether the client can work with them
etc. etc.)
I understand that 17 couples
have tried this concept in the Netherlands and all but 1 have apparently been
successful in their attempts to negotiate settlement and leave all but divorced
at check out on the Sunday.
Also understood is that
couples who apply to go to the Divorce Hotel are screened beforehand to rate
their chances of success with only 1 in 3 being accepted. Taken with the
reports that the creator of the concept is negotiating with television
companies in the U.S to launch a reality series, the cynic in me wonders whether
the screening has more to do with the perceived success of the concept than any
genuine attempt to identify couples who would do more damage to each other and
any children as a result of their inability to negotiate.
That aside, I wonder whether
this kind of service is what the British public want or need.
I understand that the concept
came about as a result of its creator having witnessed what by all accounts was
the stressful and acrimonious divorce of his college friend. The driving
motivation is to reduce hostility between the parties and deal with matters
quickly for a fixed fee but the implication appears to be that if couples
choose the more traditional route of instructing their own solicitors, they are
somehow going to become more hostile and matters will be dragged out for months
at a vast cost.
I am painfully aware of the
perception that the general public have about the legal profession but I do
think that there are a great number of family law solicitors who want to do the
best for their clients and who offer an excellent service. Of course there is a
cost to the service, expertise and knowledge provided by solicitors but, when
you consider the often complex nature of the assets being dealt with and the
fact that we are talking about people’s future security and balance that
against the costs, I don’t consider those excessive.
Add to that the increasing
number of fixed fee arrangements for Solicitors’ services and the availability
of Mediation already on Divorce and Separation and I wonder what the Divorce
Hotel is offering in addition.
Of course it offers luxury
surroundings and the promise that matters will be resolved over the course of a
weekend but is the luxury enough to prevent parties feeling pressured.
I know that parties make their
“booking” with the best of intentions to remain amicable and reach agreement
but I cannot believe that they will have really thought through every issue
that is likely to be touched upon or discussed. I can’t believe that at some
point relations won’t become fractured, perhaps as a result of the other
raising a point that they hadn’t considered before – what then of the 48 hour
timescale?
Also of concern is that
parties don’t have sufficient time to process the information and think through
their decisions – even traditional Mediation allows significant time to make
sure that parties have advice and are able to process information. My
experience of clients tells me that they, even those who have been separated
for some time, are emotional about the process of Divorce or Separation and
this impacts enormously on their decision making abilities.
I cannot imagine that the
number of major decisions that would be needed, to deal with financial
settlements and issues concerning children, could be made properly in 48 hours
– irrespective of the intentions of the parties to remain amicable.
Can this be the pressure that
people want on their Divorce?
Of course, it might be that
the couples’ financial arrangements are simple and there are no children
involved – meaning less major decisions to be made but, if that is the case,
why bother with the hotel stay, why not discuss matters together or with the
help of mediation services already available – why not do some of the paperwork
for the Divorce yourself or with the guidance of a Solicitor to speed things up
or cut costs.
I have no doubt that, as we
progress through this year and into next, separating couples will be bombarded
with different options and different service providers, all vying to deal with
their matters – be those online services, Co-op legal services, fixed price
packages (of varying quality and degree), national umbrella brands or the
Divorce Hotel model.
To have options is good – no
one option will suit all people – but what you must be clear on when facing
such issues as Divorce and financial negotiations is your priorities and
emotions. Only being aware of both will lead you down the route most
appropriate for you.
Wednesday, 2 May 2012
New Age law
The legal market has long
been behind other, more commercial, markets in evolving and developing to meet
clients’ (dare I say customers’) needs and to a point we have been restricted
until relatively recently in terms of advertising etc.
More restrictive, however,
has been our habit of clinging to “the way that we have always done it” – I
speak of the mystique of hourly rates, rafts of paperwork and a reliance on
being the “family solicitor”.
For a time, the people working
in the law have dictated the way the market works but that is changing – both
as a result of consumer demands and frustrations and as a result of legislative
changes - bringing into the mix ABS (Alternative Business Structures/Co-op Law
etc.) and removing the public’s recourse to Legal Aid.
It is not the quality of
advice or service that has been provided previously that is the issue - and I
am proud to be part of a profession who on the whole provide very high quality
in that regard - but it is the way in which the advice/service is delivered and
the “givens” that legal professionals have been able to rely upon previously that
are changing.
In this “New age” legal
market how are we to respond?
This is now the question that
many law firms are facing – how do they deliver their high quality service and
advice in a way that matches consumer expectations and demands and how do they
manage that and the sometimes competing demands of the business itself.
Some Challenges…
Lawyers understand the hourly
rate and are comfortable with it as a concept but in a world of uncertainty,
and especially in situations where solicitors are required, customers want
certainty – they want to know at the outset how much it will all cost.
That is sometimes very
difficult to achieve without over estimating (with the result of the customer
either not taking action or feeling even worse about their situation) or under
estimating (leaving the business at risk of losing revenue).
In the “instant response”
world that we now live in, security of client information is an increasing
issue and lawyers must balance that with the variety of ways that consumers now
expect to be able to communicate with their solicitor (e-mail, text,
smartphones, Skype etc.) People may also now expect instant advice but that
must be balanced with the need for the Solicitor to allow proper time to
consider the issues in hand – negligent, inaccurate or incomplete advice is not
what anybody wants.
The current economic climate
doesn’t help matters – just as a double dip recession is announced consumers
will be reluctant to take time out of their working day to take advice –
preferring instead to see solicitors out of hours or on their own time. Employer firms will have to consider lone
working policies, flexible working hours and remote working amongst other
issues.
Consumers will also be more
mindful of their spending – perhaps delaying taking action that would incur
costs or seeking out a cut price service. This might be a false economy and the
concern must be that more costly action might be required to rectify problems
down the line as a result – coming full circle to the above challenges!
But Wait….
Whilst this change in the
legal market will undoubtedly be challenging it must surely also been seen as
quite an exciting opportunity.
Lawyers are taught to think
creatively by nature – it’s all in the application and interpretation – so I
see this next phase in legal services as an opportunity to do just that – be
creative about how services are delivered.
In fact, it has been quite
liberating to have to think outside the box in that area and developing new
ways of working and new fee structures has been high on my list of recent
activity.
Yes, there will be serious
questions to be answered and, yes, it will be uncomfortable for some but the
profession has long been criticised for being closed, opaque and difficult to
deal with – we’ve all heard the stereotypes about costs, lawyers making matters
more difficult and generally being unapproachable – now’s our chance to change
that image (inaccurate as it may be).
I’m sure also that I’m not
alone in saying that one of the reasons that I decided to embark on a career in
the law was to help people through some really difficult problems, achieve
fairness or protect them from ever having to encounter those preventable
difficulties. It is easy to forget that in day to day practice but here –
especially in my practised area, Family Law – is an opportunity to really help
people - not in the provision of the advice itself, which I have been doing for
some years now, but in the delivery of it.
Tuesday, 17 April 2012
Going it alone.....the best option?
Thanks
largely to the proposed Legal Aid, Sentencing and Punishment of Offenders Bill
more and more people will find themselves having to consider
self-representation in Divorce and Family Law matters.
The
concept of DIY Divorce has been around, of course, for some time – with online
providers offering clients the opportunity of dealing with the forms themselves
and with the whole process at arm’s length – but this change in the legal
landscape will mean that people who don’t particularly want to deal with
matters themselves or who want to see a Solicitor face to face, may be forced
to consider the DIY option.
The
Divorce process, admittedly, is largely procedural and whilst there are a few
potential pitfalls, the majority of the paperwork required by the Court has
been simplified to allow parties to manage the process without the need for
legal advice – this is the procedure that many online providers deal with.
Far
more complex, however, is the process undertaken to deal with marital finances
or in negotiating arrangements for children. The case law, arguments and Family
Procedure Rules provide a formidable hurdle for those who are not aware.
Whilst
perhaps those couples who have no marital assets and no children may find dealing
with the Divorce procedure manageable (albeit that they may fall foul of not
dealing with their financial claims and allowing them inadvertently to
continue), I can’t help but wonder how those who need to negotiate financial
settlement and child contact issues will cope.
There
is, of course, Mediation – a really useful tool for those couples who are
prepared to attend sessions together and discuss the issues to reach
settlement. The government proposes to invest a significant sum of money in Mediation
over the next 24 months but I remain concerned that, without independent legal
advice, people will be left adrift, trying desperately to sort through their
many emotional and financial issues without guidance as regards what issues
they should be pursuing, which they should leave and what they can hope to
achieve by way of settlement – Mediators are not there to advise either party.
If
Mediation fails to produce an agreement, the self-represented parties will be
faced with the prospect of Court proceedings, with all the additional procedure
and rules that brings and the thought of addressing a judge directly and in
such a way as their arguments are clear.
This
may all seem a little convenient, “aren’t you just concerned that you’ll have
less work” I hear you say. Actually, no, I’m more concerned about the impact
that self-represented litigants will have on the Court and the knock on effect
that this will have for all clients, represented or not, including mine.
It
is of little surprise that cases involving self-represented litigants often
take a significantly longer time being heard in Court, because the judge must
rightly ensure that each party understands what is happening but also because
self-represented litigants do not necessarily understand the more relevant
aspects of their case. When it’s personal, issues that would have been dealt
with quickly had the parties been represented, can become almost
insurmountable.
The
rise in self-represented litigants is likely to require the Court to set aside more
time for hearings, to ensure that each matter is dealt with fully, which in
turn will lead to delays in other cases being listed – including those where
parties are represented.
In
addition, for those cases where one party is represented but the other is not,
there can be costs implications for the represented party as a result of their
Solicitor necessarily having to draft documentation for the Court, spend time
explaining matters to the self-represented party at Court in line with
professional rules and, ordinarily, dealing with increased correspondence and
time spent dealing with issues that perhaps are not fundamental to resolution
of the case – I am generalising, I know of several self-represented litigants
who cope very well.
So
you see, my concern is not only for people who will have to face the
unpalatable prospect of representing themselves in negotiating their financial
future or arrangements for their children but also the likely effect that this
will have on my own clients in terms of delay and costs.
I
am almost bound to say that I would advise that in all but the simplest cases,
legal advice is key but, in honesty, good legal advice can save parties
significant costs, help focus the parties on the relevant issues and ultimately
ensure a fair resolution with as little emotional cost to the client as
possible.
It
is undoubted that the legal market is changing and firms will have to change
their long established ways of working to ensure that people receive the best
advice in a manner affordable to them – forgetting for a second that we are
running businesses; we did all train as lawyers to advise and help people
through their difficulties – at least I did.
With
this in mind, our Family Law team has developed a range of costs solutions for
clients, from free initial appointments, monthly payment plans, fixed fee
divorce packages and bespoke plans to allow clients to access the advice that
they so need in a way that is at least manageable.
So….go
it alone?
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