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Self-represented Litigants ~ A Challenge: PROJECT REPORT
18 Kathy Mack emphasised the importance of the process itself pointing out
that there were a number of studies which reflected the fact that there was
a much greater acceptance of an unfavourable outcome for a litigant if he
or she felt that the process has been fair, rather than (perhaps curiously) a
good outcome from what was regarded as a bad process. A good example
of this during the workshop was the frustration that litigants feel in a process
that does not allow them to speak (usually when represented). This broad
philosophy both overlaid and pervaded the considerations of the weekend.
The First Road – following the court assisted litigation route
19 This proposal recognised the difficulties of self-representing litigants and
indeed of many represented litigants in coping with the existing system.
The level playing field is not there when there is an imbalance of resources
or skill of representation. Court time (in the sense of judicial time) is not
maximised where the parties with competing interests present only the
evidence supporting his or her position. Nor is the decision maker ensured
of access to the best evidence – vital information may be left out. Without
some assistance the intervention of a Judge in trials may operate unfairly to
the parties. However, all of the self-representing litigants regarded the
intervention of the Judge in the proceedings they had been involved with,
or had experience with, as being important to a fair process.
The objects of the first road
20 The proposal has three objects. The first is to put a self-represented litigant,
as nearly as possible, on an equal footing, in the conduct of a Family Court
matter, with his or her opponent whether or not that opponent is also selfrepresented.
The second is to reduce the time wasted in litigation where
one or both parties is or are self-represented, because they or one of them
does not understand what evidence is relevant and what irrelevant and
what arguments should be advanced on that evidence. And the third is to
reduce adversarial bias.
21 As to the first of these, our present system works fairly between opposing
parties only when they are of equal bargaining strength, a situation which
rarely exists in fact. For example, the richer litigant can always employ the
better lawyer, and more lawyers, and can expend more time and money
generally on the preparation of his or her case. And the dominant partner
in the marriage would ordinarily be at an advantage in both negotiation and
more confrontational litigation.
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