I've just launched a Petition on Change.org calling for the existing court rule that legal costs must be proportionate to the value of the dispute to be made to work. My ultimate aim is to shorten the litigation process - which sometimes goes on for years - and to stop ballooning legal costs.
The Petition asks that once legal costs reach 20% of the case value, the litigants must be referred automatically to mediation. This will result in a faster, more cost-effective dispute resolution process. Please go to: https://www.change.org/p/the-rt-hon-elizabeth-truss-costs
So, why is this campaign much needed and why does the UK's old-fashioned legal system need modernising to resolve disputes in the 21st Century?
But first, a few examples of legal fees getting out of control:
• 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
• A civil dispute between adult siblings and a wife over the care of an elderly man in a care home - he had lost capacity; who should do what when and where? Legal costs of nearly £40,000 were incurred before the matter was referred to mediation and agreed in a day. Why was this case of no monetary value not mediated sooner?
• Countless civil and divorce cases that go to trial over modest sums and the joint legal costs equal or exceed the value of the case - why is this not stopped?
• The dispute between neighbours over £4,000 of drain repairs where the costs reached £300,000
I have worked as a family lawyer for over thirty years and as a mediator for over seventeen years - and I'm now battling for some much needed change to our dysfunctional court system.
The worst way to resolve a dispute is to pit people against each other in the ritualised debate required by using lawyers and the courts. It fans the flames of conflict, making it infinitely worse. We now understand so much about the 'psychology of conflict' and how to resolve it and get agreement.
Yet over and over again people discover too late they have spent more on fighting than they were fighting over - despite court rules that say this should not happen and despite the judges and lawyers knowing what the costs are in relation to case value. Litigation really is the medicine that is killing the patient - so what is going on and what needs to be done about it?
Most people want to sort their disputes fast and affordably - and court proceedings and lawyers are the established route for this - but they are neither fast nor affordable. All too often the costs exceed any conceivable benefit to either party. Litigation feels like a runaway train with no end possible other than a trial or somehow settling - but how?
The impulse to defend ourselves is part of the human preservation instinct. When we are threatened by some danger our amygdala releases adrenaline that renders us incapable of rational thought for 15-20 minutes. Why? Because in the millennia of evolution which led to the development of this response, if we stopped to think we were dead, eaten, speared, kaput. We have always needed lightning responses to survive.
Under threat we have three choices. Fight, flight or freeze. Not terribly helpful in complex legal situations, when facing the conundrum of how best to resolve your divorce settlement, sort out the contractual dispute with your supplier or negotiate what time your teenager is to come home from his best friend's party. In fact, even counter-productive.
So here's my plan. Once joint costs reach about 20% of case value, both clients must be referred to an accredited mediator to hear how mediation resolves disputes based on their shared interest in reaching an agreement and ending their litigation.
A mediator is a trained professional experienced in the art of constructive dispute resolution. He or she helps people realise they don't have to agree on the 'truth' or the evidence (the 'truth' is often debatable) but they can find some common ground from which to reach a viable compromise. Mediators avoid traditional adversarial thinking and use modern problem-solving techniques to get people where they want to be.
Mediation is proven to settle between 60-90% of cases. A National Audit Office Report into Family Mediation shows that it settles disputes much faster and more cheaply than the legal route. It is already compulsory in countries such as Australia, some USA states and Canada.
Often people don't know what mediation means or they might find it unappealing as they're in the thick of a fight and they want 'justice'. However, it's precisely when the fight gets bitter that litigants need a mediator more than ever because this is when legal costs and emotions are very likely to spiral out of control. They don't have to agree on the 'truth', the 'rights' and 'wrongs' or legalities - they can mediate a deal and stop fighting. Job done; they can get their life back!
Please sign my Petition and share it with friends, go to Change.org at: https://www.change.org/p/the-rt-hon-elizabeth-truss-costs