Court privatisation? Go the whole hog and arbitrate

I was recently motivated to take up cudgels in defence of arbitration in the worthy pages of the Law Society’s Gazette. What I said in that letter and why I wrote it are not particularly relevant to this blog piece, rather, it is the response which I received from one legal commentator, when I referred to the letter on LinkedIn, which I want to mention. The point made? ‘Arbitration is privatisation of justice’.

The individual’s reply pre-dated the media revelation that the government is contemplating privatisation of the courts. Oh, the irony and timing of it all...

Access to justice

As we know, the cuts to public funding in April 2013 are estimated to have deprived 600,000 people from getting state-funded legal advice and representation. Some 200,000 no longer qualify for such help with divorce, separation, related financial matters or child contact and residence disputes.

The recent YouGov Sixth Sense report, Family Law and Divorce, found that 24% of its sample had used legal aid to fund some or all of their divorce proceedings. The report notes that this option has now gone for all except a limited number of cases.

Privatisation

Not content with dismantling the legal aid system, the government is now reportedly contemplating privatisation of the courts. The supposed leak to the media indicates that the Ministry of Justice (MoJ) is considering selling off court buildings and transferring 20,000 court staff to a private company. Presumably any private company could then charge larger fees and attract investors, making justice more inaccessible for the less well off?

Of course, an MoJ spokesperson has said, “The proposals being considered are not the wholesale privatisation of the courts service”. They would say that, wouldn’t they?

Whatever the MoJ really has planned may not become clear for some time. However, the perceived threat has spawned a rash of articles and comment, as well as an e-petition on the HM Government website entitled, “Do not privatise the Court Sevice” (sic). The petition calls for any plans to privatise any part of HM Courts and Tribunals Service (HMCTS) to be dropped, and for any privatisation that has already taken place to be reversed. When I last looked, only 35 people had signed it. Poor show.

Sir James Munby, president of the Family Division, told family law professionals in my area recently that the family justice system was "in the last chance saloon". He said: "We have to realise that public finances remain in a dire state and that asking for more money, more judges, more this, more that, is simply crying for the moon."

ADR options

So, if it is argued that arbitration is private justice by another name, how does this argument succeed when privatisation of HMCTS in some form or another is likely to happen anyway? In fact arbitration is simply another method of paid-for dispute resolution and a potentially very good one at that. Frankly, with the demolition of legal aid, paid-for justice is essentially what we are left with, save for a handful of exceptions.

It puzzles me that the government has not got behind family law arbitration. In contrast, it promotes family mediation hugely, although not always accurately. The playful new MoJ video, “Understanding Family Mediation” omits to mention that those mediating should ensure that they get independent legal advice. Meanwhile, the government’s 5 June press release was entitled, “New mediation laws to help separating couples”. Only further down does it state that these ‘new laws’ are “currently going through Parliament”. Despite the government’s efforts, YouGov finds that less than a quarter of those involved in divorce proceedings went through any process of mediation at any point before, during or after divorce.

The advantages of arbitration

The Institute of Family Law Arbitrators’ scheme offers many things the courts cannot. The entire process is confidential by its nature. The parties can choose their arbitrator. Subject to the arbitrator, the timetable is down to the parties to agree. There can be an expedited procedure if the arbitrator agrees. Finally, there may be a saving of overall costs over court proceedings. What’s not to like? Yes, there is a cost involved in hiring the arbitrator but surely it is only a question of time before the family courts will charge a set down fee, at least? Indeed, it is happening already in child care cases. Such fees would be even more likely following any privatisation.

Family law solicitors have grown accustomed to using various methods of dispute resolution. As the courts become even more clogged up with litigants in person adding to current delays in listing hearings, it is inevitable that such lawyers will be much more ready to embrace arbitration so that our clients can get on with their lives sooner rather than later. Indeed, we all should be considering opting for the arbitration process now.

Tony Roe is a solicitor and  family law arbitrator at Tony Roe Solicitors, Berkshire

Twitter: @tonyroedivorce