Monday, April 09, 2012
Is arbitration only for the mega-rich?
I've seen it suggested in a number of places that the new family law arbitration scheme is likely to be a method of dispute resolution that is primarily for the wealthy. It is a point that I have raised before. This morning, I came across two linked newspaper headlines that support the hypothesis.
Firstly, the Financial Times (a paper obviously written for those with wealth) ran a piece yesterday entitled "Super-rich drawn to new divorce arbitration". I have not read more than the first few words of this story and will not provide a link to it as it is behind the great paywall of Murdoch, but it seems to suggest that one of the big attractions of arbitration is that it "holds out the prospect of super-rich divorcing spouses squabbling over their wealth in private rather than in the full glare of the media" - a point to which I will return shortly.
The FT piece is referred to in the other story, which appears in today's Telegraph and is entitled "Wealthy couples turning to arbitration to settle divorce disputes". Obviously, the FT piece may be the sole source for this story, which uses similar language. It tells us that in the short period since they have been available, reports suggest that: "An increasing number of wealthy couples are turning to new arbitration schemes to settle divorce disputes rather than squabbling in public through the courts", and goes on to say that: "Lawyers say the scheme is likely to attract “super-rich” couples bickering over “big money” divorce settlements who want negotiations carried out discreetly".
One of those lawyers is my fellow blogger and one of the first tranche of trained family law arbitrators Marilyn Stowe. She is quoted as saying (in the FT) that one of the two groups of people that she thinks will find the scheme attractive are: "Those who are in big money cases who can circumvent the waiting period in the courts and also are prepared to pay the fees of the arbitrator to have the benefit of privacy." Obviously, one should add the words "and able" after the word "prepared".
All of this adds to the depressing prospect of a three-tier family justice system for those who are unable to agree their matters. At the top we will have those who can afford either litigation or arbitration, which will give them the added benefit of privacy, not available to lesser mortals. In the middle will be those who can afford litigation but not the expense of arbitrators' fees, and at the bottom, once legal aid is removed, it will be "fend for yourself".
I'm not saying that the extra option of arbitration is a bad thing, but it is sad that it is an option only available to those with money, and possibly only those with a lot of money.