It seems clear that Family Arbitration has something to offer in the divorce arena, but will it be adopted by the legal profession as another tool in the divorce tool-box – or be quietly left in a cupboard to be brought into the light only by a small band of hard-core enthusiasts?
It does have some limitations – currently, Arbitration cannot be used to decide children matters.
“Arbitration is certainly …a huge untapped resource at the moment… it can determine financial matters be it a discrete issue such as the level of maintenance or all issues as to financial/property settlement between spouses or unmarried couples…. It is not yet used for matters relating to the welfare of the children.” Olive McCarthy, Breeze & Wyles
Yet – according to Family Arbitrator, Sir Peter Singer – there are some who predict that as a logical development the Family Court judiciary will support this when English private children law principles are applied by experienced and trained family practitioners.
“They point to the fact that child issues are already arbitrated under Scotland’s version of the IFLA Scheme, and anticipate a parallel development south of the border.” Sir Peter Singer
Is Family Arbitration inherently part of an adversarial process?
From legal minds I have heard the viewpoint that Arbitration is inherently ’adversarial’, because it involves someone else making a decision on behalf of the couple.
But personally – as well as in my role as the Alternative Divorce Guide – I see an enormous difference between a couple in mediation mutually agreeing to instruct a highly qualified person to make a decision on a financial issue, which the couple are unable to resolve themselves – and then to continue on with the mediation process – rather than the alternative.
That alternative can often be that the couple give up on their mediation process and go to court, where the mediation agreements to date might be disregarded by the judge. High costs, more inconvenience and greater emotional trauma for the whole family will often ensue.
Because Arbitration keeps the couple ‘in control’ of the process, that in itself should encourage a greater level of communication and cooperation, compared to if they are throwing letters at each other via separate solicitors.
Christopher Pocock QC sees Arbitration as an empowering process for clients: “If you start the arbitration process and then agree, or agree part, that is fine – the arbitration is your process, so insofar as you agree something, it happens”.
Is Family Arbitration just for the rich?
But paying for your own ‘private judge’ – is that something that most ordinary people will be able to afford, or to access? Sir Peter Singer believes that Arbitration is accessible to most people navigating divorce:
“I would like to emphasise that arbitration is not just for the rich and famous: it offers many of the same advantages to Mr and Mrs Average as to those whose net worth is high. And amongst the 130 or so MCIArb qualified arbitrators there is a range of talent and experience and a spread of geographical availability which puts them within the range of most any couple otherwise headed for court.” Sir Peter Singer, Family Dispute Resolution Facilitator and Arbitrator (MCIArb)
“Arbitration is the way forward, the benefits are huge for clients particularly the costs. In the last year, some of the most eminent members of the profession agreed to fix the costs of achieving an award for £1,500 plus Vat – that’s £750 per person in straight forward cases. So strong is the belief and commitment to this scheme, Arbitrators were prepared to effectively “put their money where their mouth is” in making this offer.” Olive McCarthy, Breeze & Wyles
So is Family Arbitration being taken seriously?
Arbitration is being taken seriously by judges – perhaps because it has the potential to release some of the burden of litigants clogging up the courts.
The arbitration process for financial disputes in general and the IFLA Scheme in particular has received important endorsement from the President, who heads the Family Division, in a case he decided earlier this year: S v S.
He made it clear that in normal circumstances a court should be swift to confirm an arbitrator’s award in a court order, and to preserve the confidentiality of the process so that individuals and their financial arrangements will be kept free of press or public comment.
Further impressive support since that decision has come from the Financial Remedies Advisory Group’s report at the end of July which, amongst other things, recommended that the President should issue Guidance specifically directed to arbitration and produced a draft which is currently the subject of consultation.
The convenience factor
Perhaps it is the flexibility and convenience of Arbitration that will make it popular with busy professionals who just don’t have the time to battle out their divorce in the court room, let alone the desire for all that additional stress and misery.
“The Arbitration process is flexible in relation to timing. No need to wait for the court to appoint a judge when it suits the court diary. Family Arbitrators are likely to be able to arrange their diaries to suit the parties. So this means late sittings or even weekend sittings. So the couple are not faced with having to come back on an adjourned hearing in 2 or 3 months’ time because the judge is not willing to sit after 4-30.” Martin Loxley, Partner Irwin Mitchell LLP
Who needs to be convinced first – the public – or the legal profession?
Not only do the public need to understand the benefits of Family Arbitration, but so do family lawyers – as it is another tool in the divorce tool-box that can benefit their clients. It’s usefulness is too immense to be disregarded. According to Sir Mathew Thorpe, Arbitration could be one of the most significant developments in the field of dispute resolution…. Ever.
“The creation of the Institute of Family Law Arbitrators in 2012 provides couples with the opportunity to choose arbitration regulated by Arbitration Rules and affiliated to the Chartered Institute of Arbitrators. There has been no more significant development in the history of Family ADR.” Sir Mathew Thorpe
I feel that a process that can add to the empowerment of a couple navigating divorce, by becoming an additional resource to call on during the mediation process if and when required – rather than to take their power away and hand it all over to a judge – has got to be a process worth taking seriously.
“I am quite sure that Arbitration is the future. The court system is woefully underfunded and it is going to all but collapse under the weight of litigants in person.
Family Arbitration provides a flexible and cost-efficient means of resolving disputes. There is no “one size fits all” approach; the nature and number of hearings is tailored to the particular case.
Family Arbitration can deal effectively with all cases, from those where absolutely everything is in dispute to those where only a few minor issues remain.
It is ideal for those cases where the parties wish to retain control over the timing and cost of the process but nevertheless need someone to decide the case – or parts of it – for them. The procedure being tailored to each individual case, it is extremely time and cost efficient.” David Walden-Smith MCIArb, Barrister & Family Arbitrator