Emma Morris

Divorcing couples now have a plethora of options when deciding how best to deal with their financial division upon divorce. The new(ish) Non-Court Dispute Resolution (“NCDR”) rules require parties to consider, and where appropriate actively participate in, NCDR processes such as mediation. Indeed, for some time now parties have not been able to issue an application at court without first attending a Mediation Information & Assessment Meeting (“MIAM”) with a mediator.

However, mediation is not suitable for everyone for a variety of reasons. If mediation has failed and solicitors are at an impasse, the options are narrowed down to the court process – with or without the use of private financial dispute resolution (“FDR”) – or arbitration. This article focuses on the significant advantages, so far as I see them, of arbitration.

Timing

Whilst courts around the country have differing scheduling pressures, it is commonplace for the first administrative appointment to take anything up to five months to be listed from the issue of an application. This is followed by an FDR, often six months after the first appointment, with the final hearing up to another year thereafter. That could add up to a staggering 18 months to two years, during which parties and their children are in an uncomfortable – and often fractious – limbo.

Arbitration is an alternative. It can be scheduled quickly, often as soon as the disclosure process is complete. Clients can fix a date to ensure their own availability and that of their legal teams, the latter being something the court no longer accommodates. This is important because if solicitors/counsel have been advising for a while and the court lists on a date they are not available, this adds a layer of stress and additional cost in bringing a new adviser up to speed.

Finality

The biggest advantage of arbitration is its finality. An FDR, whether it be private or court led, cannot bring about the conclusion of proceedings unless this is something the parties wish to achieve. Arbitration is different. The arbitrator’s award follows the arbitration, usually within two weeks but often only a couple of days afterwards. It is final and converted into a binding court order shortly thereafter.

Expertise

Judges are under immense pressure; they are often juggling numerous cases on the same day and – whilst they are all highly professional and do their very best – the time they can dedicate to papers in advance of a hearing or to the hearing itself is extremely limited. Clients are often disappointed to learn that the bundle of papers sent to court before an early hearing is hardly read. By contrast, an arbitrator builds time into their instruction to pre read a case fully and often has a short preliminary online hearing in advance of the arbitration to make certain that everything required has been done. This ensures the arbitration runs smoothly.

Arbitration provides flexibility that a court does not, allowing the parties freedom to agree in advance what they want to be decided.

Cost

Although there is a cost in paying for the service of an arbitrator, that cost buys certainty. It guarantees an arbitrator dedicated solely to your case on the day, who has read all your papers before meeting you. It guarantees you an expert in the relevant field. And it guarantees a decision – known as an award – within a very short timeframe, whilst saving money and with less acrimony than the alternative.  Set against a year or more of solicitors’ correspondence and niggling interim issues before a final hearing can even be listed, the cost of an arbitrator is modest by comparison. The personal toll of being left in limbo for that long is harder to quantify, but no less real. Arbitration cuts through that: it delivers a final outcome and brings the litigation to a conclusion.

Experts

If you need to call an expert, it is often cheaper to do so within an arbitration hearing rather than within the court process. There is a great deal of waiting around in court, during which an expert (perhaps a surveyor or pension actuary) will be charging at their hourly rate. With arbitration you can decide in advance exactly when the expert will give evidence, thus limiting their waiting time and costs.

Less adversarial

Settling a family dispute inside a court building is not optimal. It induces stress and there are often insufficient places to sit or take advice from your advisers. By contrast, arbitration can take place anywhere the parties choose; they can agree the format and timing of the day in advance, and whilst the setting is formal, it is far less daunting than a court building.

Privacy and publicity

I’ve acted for many high-profile clients, from sportspeople to entertainers and politicians. Conducting a case in the glare of other court users is difficult at the best of times but made much worse when space for a private conversation is lacking. Furthermore, media coverage is now an ever-present concern: court proceedings (barring purely children matters) are public record, and notices name the parties unless there has been a successful application to anonymise.

Arbitration removes that risk. It takes place in a location of your choice and does not appear on a public list, so the media is unaware it is happening. As such, there are no unwanted photographs of parties arriving at court and no pressure to face a microphone when parties leave the building. This allows people to deal with a highly personal issue privately, which is clearly better for them and their children who could otherwise be affected by media coverage or adverse publicity.

Arbitration is not simply for an all-encompassing final award. It can also be used to aid settlement because it is entirely possible to ask an arbitrator to decide upon a single issue. Resolving that one issue often unlocks the entire case, and settlement is achieved. Moreover, where suitable, the issue can be dealt with on paper without either party needing to attend in person, providing a quick and cost-effective resolution of a tricky issue.

In short, arbitration ensures that your matter is decided by an expert who has dedicated proper time to reading in and to deliberating their decision. It is quicker, often cheaper, and allows for total flexibility and confidentiality.

About Emma Morris and Burgess Mee

Emma Morris, Legal Director at Burgess Mee, is one of London’s leading divorce lawyers with 30 years’ experience in family law. She is a practising arbitrator and Member of the Chartered Institute of Arbitrators, and also conducts private FDRs.  She is collaboratively trained and a member of Resolution.

Burgess Mee Family Law is an award-winning firm offering the full range of family law and private client services from three offices across London. Founded in 2013 by Antonia Mee and Peter Burgess, Burgess Mee offers high quality, bespoke family law and private client advice and service whilst being more cost effective than its City competitors.

The firm comprises 26 fee-earners (including six partners) from leading firms in and around London. All solicitors belong to Resolution, which promotes the constructive settlement of family matters.