Should more mediators be paying attention to family arbitration? It has after all been shown to quite effective in the US and Canada and is known to be able to rescue a mediated divorce from crumbling into a nasty expensive court battle.
My interest in finding out more about family arbitration was originally sparked by a conversation with New York Mediator Ken Neumann, who described how useful arbitrators could be in un-sticking a mediation process. “Sometimes,” he explained to me, “the couple can’t agree on one issue, and they just want someone else to decide for them.”
Family Arbitration is the new kid on the block in the family law community in England and Wales, and the potential benefits to divorcing clients are immense. An excellent talk given by UK Arbitrator Mena Ruparel convinced me that the rise of family arbitration in the UK was a cause worth supporting.
I made contact with several Arbitrators and to my surprise, received a cascade of responses! I was struck by the obvious passion and enthusiasm for arbitration amongst a wide range of family law professionals who have qualified as family arbitrators, ranging from barristers, mediators and collaborative lawyers. I include their contributions in the following articles, with thanks.
What is family arbitration for?
According to Nadia Beckett of Beckett Solicitors, “Arbitration is a fantastic tool for resolving issues where there is an agreement on most things but perhaps just one sticking point. However it can also be used where no agreements have been reached.”
Solicitors and mediators should understand the importance of family law arbitration and should always consider it as an option for their clients. As the courts grind to a standstill through financial cuts, the withdrawal of most legal aid and years of under-funding, it is becoming increasingly difficult for separating couples to resolve their issues quickly and efficiently.
Arbitration is flexible. It can be used by litigants who are legally represented and those who are not. It can be a lot less formal than going to court and it can be used to resolve a single financial issue or all financial issues.
There is still a degree of ignorance amongst solicitors, barristers and mediators about FamilyArbitration and a mistaken view that Arbitration is just for rich people.
That is not the case and ultimately it can actually work out cheaper than going to court as the parties have much more control over the process. Unfortunately family Arbitration cannot be used to resolve disputes over children.”
Suzanne Kingston, Family Partner at Withers LLP, spearheaded the Family Arbitration course in England and Wales and has been involved in training all of the family arbitrators to date.
She believes that arbitration is likely to become more prevalent than ever due to the problems with the current court system.
She advocates considering arbitration as an alternative and suggests thinking about this at the beginning and part-way through a case to ensure that clients are given every available opportunity.
How could family arbitration come to the rescue of a non-adversarial divorce process?
“It can save a family mediation from failure when one or two stubborn issues remain. The Arbitrator can be instructed just to resolve those remaining points over which the parties have agreed to disagree. The unpleasant conflict of a court case is thereby avoided, the settlement remains one achieved in a consensual manner.“ David Walden-Smith MCIArb, Barrister & Family Arbitrator
In other parts of the world, including the United States and Canada, when family mediation process founders an arbitrator is brought in, if the couple wish it, to resolve the disagreement for them.
This is also how it can work here – but currently not enough solicitors are informing divorcing couples adequately of this option.
Should family mediation prove unsuccessful, for instance, instead of ending up in court a divorce arbitrator could help unravel that single sticking point and quickly (compared to waiting months for a court date).
Unfortunately (in my opinion) this move towards working with a divorce arbitrator is only possible in the case of an unsuccessful mediation process but not in the case of an ineffectual Collaborative Law process.
Even if a financial planner gives clear advice on how a pension could be split or the division of property assets, it may be that the parties would like an adjudication from the arbitrator who will write their award and make a legally binding decision.
The arbitrator can also deal with discrete elements of a case so if there is a mediation where there is one issue that needs to be resolved, this can be referred to arbitration keeping the rest of the agreement in tact.
It would seem sensible for McKenzie Friend’s to acquaint themselves with the benefits of arbitration to provide a much needed resource for couples whose usual choice may be to go to court without representation from a lawyer. However there seems to be a reluctance at this early stage to encourage self representing litigants to consider arbitration as an option en masse.
And how will divorcing and separating families in general get to know about family arbitration as an option? It seems that it will rely on solicitors sharing the good news. And there’s the rub.
Nigel Shepherd of Mills & Reeve LLP states, “On arbitration, I remain of the view that the key market for some time to come is going to be family law professionals, but that is certainly intended to include mediators.
Whilst the advantages of the scheme in terms of speed, flexibility and confidentiality etc are easy to convey, the details of exactly how the scheme works (interaction with court, restrictions on involving third parties etc) are rather more esoteric and the main task to date has been to try to get mainly lawyers to understand these issues and indeed to recognise that it isn’t mediation or collab.”
So it seems to me that family arbitration could well be the White Knight who charges in at just the right moment to save the family mediation damsel from being gobbled up by the dragon of a courtroom divorce battle, rescuing the family from all the additional costs and misery of a full scale adversarial divorce.
But will the news about this new tool in the divorce toolbox be able to get through the castle gates if the drawbridge is kept locked and bolted, because solicitors and the public remain largely oblivious to it’s benefits?
For more information regarding Family Arbitration, refer to the IFLA website: ifla.org.uk