“If only Coronation Street would include arbitration in a story line” opined Sir Peter Singer, retired High Court Judge and champion of family law arbitration. A retired High Court Judge who knows more than most after a lifetime of experience, he was speaking at Inner Temple in Central London last night. Members of the legal profession and judiciary had gathered for a Law Society-sponsored book launch.
“If we could only get the public to engage with arbitration” – that was the overall theme of the evening. Everyone present knows that it has the ability to deal with all manner of financial disputes. Sir Peter however raised the tantalising prospect of arbitration being extended to children disputes too. And frankly, why not?
The book which provided a focus for the evening is Family Law Arbitration, with its interesting strapline A judicially recognised alternative to the family courts. Published by the Law Society, it is written by solicitor-arbitrator Dennis Sheridan in a straightforward, easy to read style. The book describes a successfully-handled arbitration, with two satisfied parties who had engaged fully in the process. It describes the approach, the process, and the current state of the law which is being shaped by the judicial approval of none other than Sir James Munby, the President of the Family Division himself.
The arbitrators present, who had spent considerable sums on their training, passing a stiff exam to boot, won’t need this straightforward easy to read book as much as the general public. They need no convincing of the merits of arbitration : speed, privacy, fixed costs and enforceability in court. But the public still aren’t buying into arbitration as a whole – no doubt because many simply do not know enough about the process and therefore don’t engage. Ask any member of the public how you get a financial settlement in a divorce and my guess is that most will say “in court!”
As an out of court process, arbitration just isn’t something most people will associate with divorce. This isn’t a surprise. As new figures show, neither is mediation, despite the best efforts of the Ministry of Justice to publicise and push the public into the mediation room.
So there is clearly still much to do when it comes to convincing an unsuspecting public they can side-step the court process, avoid a lengthy battle, fix the costs, and – most importantly – walk away with an award the courts will uphold. Mediation offers no such guarantee.
Sir James Munby was the principal speaker last night. Flanked by Lady Justice Black and Mr Justice Moor, Sir James made it clear he was not present to endorse any specific product or specific scheme. Rather he was there to confirm judicial support for out of court processes that deliver a fair and cost effective result for litigants in person particularly. Arbitration is one way of achieving such aims and new procedural rules will make it easier to to turn arbitral awards into court orders. The drafting job has fallen to Mr Justice Mostyn and Mr Justice Cobb.
Last night Sir James called on those present to get on board and deliver such cost-effective, sensible outcomes. He looked like a man who never stops working, but also like someone having a ball while doing so. Whether you agree with everything he says or not, the President struck me as someone driven by his crystal clear view of a reshaped family law process. It just needs to be put into place by people who are willing, or persuaded, to share his views. The children side of this vast problem has in the main been done. Now it is time to tackle the rest.
But I noticed, the arguments for and against legal aid didn’t crop up. We are where we are and we work with what we have. It’s clearly up to us now.
Sir James delivered his message quietly and calmly but with the authority of someone who knows where he is going, and he is going to take us all along with him whether we like it or not. He is running the whole family law show, from top to bottom, for the benefit of the consumer, rich or poor. He is reshaping the process, the rules the administration of the family law system the best way he can, in all respects fit for a 21st century consumer in difficult cash strapped times where government funding is strictly limited, courts are closing, and lawyers, particularly the Bar, are feeling the pain. And still he wants us on board with affordable fixed costs for the sake of consumers who might be persuaded to keep their cases out of court. Gone are the cosy days of everyone being able to go to court with a lawyer. The recession has done for that. Now we have a turbulent and ever-changing family law landscape.
I agree that most practitioners are already on board when it comes to the overall aim. Market forces, however, determine our ability to support cheaper fixed fees and still survive. Offering knock-down prices that put insupportable financial strains on a firm are as foolish at one end of the scale as engaging in cases with such speculative, eye-wateringly high costs they will never paid at the other. What’s the point?
A balance has to be struck. The consumer is not the only consideration and those firms who have emerged from the recession stronger than ever, must indeed have the balance right, aligning the interests of the consumer with the need to run a tight ship that won’t sink.
Whilst Sir James is absolutely right in his aims for the man in the street, the problem comes with putting it into commercial practice. This is an area in which we practitioners who pay the bills to keep our firms going have far more knowledge, experience and know-how. With the best will in the world, arbitration has to work practically – particularly for those who once had access to legal aid. So how does a couple pay their arbitral fees where one party does not want the only available asset, the house, to be sold and also needs maintenance just to survive? Wouldn’t going to court without legal representation be a cheaper option for that couple?
I wonder. If legal aid is made available for one out of court process, mediation, is there any real reason it could not be extended to arbitration in qualifying cases? If it was, Sir Peter’s wish might yet come true. It would make great sense in a Coronation Street storyline.