Arbitration and costs: A year in family law part 3

Family Law|December 29th 2014

In the final part of our series, Stowe Family Law Senior Partner Marilyn Stowe reflects on significant legal developments over the last twelve months.

One of the most encouraging developments in family law for me over the last year has been the increasing profile of arbitration, a firmer and more effective alternative to mediation and other forms of alternative dispute resolution.

The current government has been fixated on mediation for some time now. For them it is clearly a cheap, one-size-fits-all alternative to legally aided court action, but whatever ministers might hope, the fact remains that mediation is simply not a panacea. It requires both parties to be receptive and willing to participate in the process for one thing, it will only work if undertaken at the right stage for another, and it cannot be legally enforced.

Arbitration, by contrast, is overseen by a fully qualified legal professional throughout. It usually costs less than court action, while the decisions reached are binding in a court of law. And now, at last, arbitration seems to be shedding its curious obscurity and its potential in the post legal aid era is attracting some overdue attention.

Such high profile legal figures as retired High Court judge Sir Peter Singer, District Judge (and qualified arbitrator) Alexander Chancellor and even Sir James Munby himself have all highlighted the potential and effectiveness of arbitration.

As one of the first solicitors in the country to qualify as an arbitrator, I welcome this. Could 2015 be the year arbitration finally enters the mainstream?

Meanwhile, the end of the year was also enlivened for me by the case of J v J, a high net worth divorce in which the redoubtable High Court Judge Mr Justice Mostyn had some forthright words for the couple’s hapless counsel, who had bombarded him a with a profusion of legal documents and overseen a costs bill which had by then ballooned to a startling £700,000.

His Lordship went to make a controversial call for the introduction of fixed fees in such cases – a call he repeated at a subsequent commercial arbitration seminar which I attended with my son Ben.

Mr Justice Mostyn is a fine judge and I’m sure his intentions are good. But as I argued here, I simply do not believe that fixed fees reflect the realities of running a commercial law practice, nor the complexities of life on the frontline managing clients’ varying demands, needs and perspectives.

It will be intriguing to see what becomes of the fixed fees controversy next year.

Author: Stowe Family Law

Comments(18)

  1. Pete says:

    Just goes to show Marilyn, solicitors are only out to make as much money as they can out of other peoples misery and are prepared to argue to keep there prices up.

    • Marilyn Stowe says:

      Dear Pete
      Lawyers don’t create problems but are trained to help people out of their problems.
      Arbitration is one way to resolve issues and keep costs down.
      Regards
      Marilyn

    • Nordic says:

      Dear Marilyn,
      Lawyers earn their fees from representing mums and dads set against each other in what is probably is the most outdated, acrimonious and destructive family law system in existence anywhere. That’s the reality that confronts parents who find themsevles at the mercy of the system. The family law profession’s glorified and self-justifying narrative is a fiction.

      • Marilyn Stowe says:

        Dear Nordic
        When lawyers represented more clients than currently, many more cases settled. Id far rather a case settles well and a client recommends me.
        Regards
        Marilyn

        • Nordic says:

          Dear Marilyn,
          Firstly, as a collective English family lawyers do not in my experience help settle cases but rather extend them and make them more acrimonious. It is also my observation that family law is an area which seem to attract a greater share of lesser quality lawyers. There are an awful lot of cowboys out there who’s only objective is to generate fees by creating conflict.
          .
          Secondly, even if you do a good job for your client (and I am sure you do), this need not be the right outcome for the family overall. You do not represent the family, you represent a single individual in that family and in doing your best for that client and winning the case, you might contribute to the wrong outcome. Cases and courts create a box-ring which is not where mums and dads belong when they are going through divorce.
          .
          Thirdly, the focus of family law should therefore be to limit the scope for making a case in the first place and thereby reduce the potential for conflict within the family. In the Nordics you cannot get into a court and argue about asset division. You cannot make a case around child payments and you will only ever get a short fixed term spousal maintenance. You cannot either reopen everything again years later. The philosophy is that both parties (regardless of gender) are adult which should share the responsibility for the kids but otherwise be independent post the divorce. So, you simply cannot fight about all the things the couples are encouraged and prompted to fight about here.

  2. Andrew says:

    Marilyn: nobody loves our trade. We are like estate agents and sellers of new tyres: people come to us at a bad time!

    Not that I don’t want to put us out of business as regards the financial side: I do. Prenups recognised; if no prenup then equality postponed if necessary during the minority of children; a better way of sorting out claims under the existing law in cohabitation (something like good old s17 MWPA) without a change in the substantive law; Calderbank to discourage litigation a l’outrance. Them’s my principles.

    • Marilyn Stowe says:

      Dear Andrew
      Oh…I see…That formulaic approach. Remember the CSA? Talk about brain ache and injustice on a grand scale. No more of the same thanks,
      Merry Christmas
      Marilyn

      • Nordic says:

        Dear Marilyn,
        On your logic, anybody who drove a British Leyland in the 1970s would conclude that the Brits can’t make cars and that therefore we should go back to horse drawn carriages! The fact that the CSA was, and the CMS will be, a complete failure reflects the mad and discriminatory way they were implemented, not the rules based approach. All you can possibly conclude is that Brits are about as good at making family law today as they were at making cars in the 1970s.

      • Andrew says:

        Marilyn: the yardstick of equality without the notion of “stellar contribution” – which is what you favour in big money cases – is a formulaic approach par excellence, and one which leaves the husband with half the assets. Why should not his poorer brother have the same, postponed where necessary to protect children?

        If anything a formulaic approach is more suitable in run of the mill cases where detailed examination and the attempt to find a “just” solution non-formulaically will eat the assets in costs!

        • Marilyn Stowe says:

          Dear Andrew
          I am a firm believer in meeting reasonable needs before sharing assets. So I don’t agree. I also don’t subscribe to the “genius” argument to ring fence vast sums from division, irrespective the “genius” is male or female.
          Regards
          Marilyn

          • Andrew says:

            Why are the husband’s needs (after the children are grown up) less reasonable than the wife’s? Why should he spend the rest of his life in bedsit land? Why not a share out in due course?

          • Marilyn Stowe says:

            Dear Andrew
            What actually happens is that the court looks at both party’s reasonable needs. The bread winner’s income and ability to rebuild are relevant factors. Ditto the homemaker whose assets generally can’t be utilised to rebuild because they are used to rehouse.
            Regards
            Marilyn

          • Andrew says:

            it is my belief that after the children are grown up both parties should enjoy a similar standard of living – equality of sacrifice, equality of hardship. An ex-husband who is not in his first youth and has rent to pay will never get back on the ladder, so a result that leaves her with the house outright and him with nothing does not achieve that.

            We are not going to agree!

          • JamesB says:

            That argument would make sense if a clean break were possible. With the csa and cmec and cms a clean break is not possible, so the argument about ability to rebuild then, with the courts who say it, becomes farcical, like the courts who say it, especially where the wife takes the house, as is usual. Thus the women gets to spend her latter years nicely and the man not so nicely. I can see why you are ant csa as they stand squarely between your views and fairness.

            If I was able to have a clean break when I was divorced (my youngest was less than one), then, 1, I probably would not have been divorced, and 2, I would have been able to rebuild without having to spend the rest of my life sleeping with earplugs in a not so nice area, I could go on about it, but it is where I live and I try and make the most out of it. A lot of men, as per Andrew’s point, end up in caravans, and worse which isn’t fair. The section17(may be wrong, someone mentioned it earlier) which says where there isn’t enough to go around makes the person with the children clean up and have a lot nicer life than the other and that is the issue as Andrew correctly points out and I agree with him on, and that is a first. Although I am not sure he has a workable answer to it and you do, with your clean break theory, except as we know it isn’t law and the csa cmec cms have undermined it and mean you can’t out argue Andrew and the courts are no longer fair. Speaking as someone who has been trying for 10 years to rebuild while paying child support and seeing children it is very very difficult. For example trying to keep job let alone further career without enough sleep or warmth at night.

          • JamesB says:

            I meant I can see why you are anti csa as they stand squarely between your views and fairness.

            I share the same view as you if you think a clean break should be possible as I think that also. I also think that we share the same views on co-habitation agreements, and also nhs continuing care and the elderly and most things Marilyn and I wish you well also.

            A csa liability also has psychological baggage with it which makes things hard, especially with idiots calling nrps deadbeats and society trying to lable nrps bad when we are not, I know its not hard being a single parent either, but given the csa cmec cms Andrew’s answer would be better for me than yours. Pre-csa cmec cms your way was the best way and I would like for things to go back to that to enable more children to be with their parents and more nrps to be able to be ok in latter years than they are.

            I know many nrps who try the courts way and find it impossibly hard, this ability to rebuild that you mention.

          • JamesB says:

            The psychologically damaging effects of divorce have not been mentioned here when they should have been also, ability to rebuild is a bit pie in the sky really and given the choice the Judges opt to not worry about the man and the women and children end up with the assets. Leaving women ok in old age and man not ok in old age.

          • Nordic says:

            Dear Marilyn,
            So, say the mother was the primary carer at the time of divorce and therefore got a greater share of the assets and kept the FMH. What then if the kids subsequently move to live with their father? Presumably the courts view is that this should not happen. Mums nurture the kids and dads work and that is how it is, should be, must be.
            .
            Asset allocation is backward looking, maintenance is forward looking. Mixing them together is unsound and serves only to create litigation which reduces the total pot (and the kids inheritance). If you told a Nordic national (of either gender) that they would not get half of the assets built up during the marriage, they would think you were mad.

  3. JamesB says:

    On the one side you have the irate Judge / Lawyer, on the other side the confused parent. The unstoppable force meeting the unmoveable object. A bit like Judge Judy.

    I have seen more than my fair share of Judges and Lawyers shouting at me for no good reason, not a pretty site really. I suppose the question is really, like the csa, cmec, cms, do they do more good than bad, and overall, its a fine line.

    I think, on the balance of probabilities, csa, cmec, cms, and family law in this country does more harm than good.

    However, with amendments, like pre nups and scrapping the csa / overulling it with pre-nups, that they can do more good than harm, however without doing that, then probably better selling tyres or sticking to adoption cases.

    Marilyn’s comment earlier about lawyers getting involved to sort problems out and reduce acrimony and cost made me smile, that is the opposite of my not inconsiderable experience.

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