Why is family arbitration not used more often?

Family Agency Work

Aside from hand to hand combat, going to court is quite possibly the worst possible way to resolve a dispute during a divorce or separation.

Litigation is expensive and adversarial. There are very few couples who are still able to talk to each other after court proceedings, which is a big problem if they have children. Court proceedings make people think only in terms of winning or losing, where as in reality most family disputes require some degree of compromise. One party, or quite often both, will feel hard done by at the end of it. People often leave court feeling that the outcome is not fair. Court is a bruising place.

Therefore, wherever possible, I encourage my clients to use alternatives to court. The most common alternatives are negotiation, mediation and collaborative process. There are also much less commonly used alternatives such as Early Neutral Evaluations or private Financial Dispute Resolution (FDR) appointments , where a barrister will give an informal non-binding indication of what he or she considers is the likely outcome in a manner that imitates the court’s FDR process.

However, what if a couple just cannot reach an agreement, despite their and their solicitors’ best efforts to do so? Are these parties then condemned to making an application to the court?

No. There is another alternative – family arbitration.

Family arbitration involves the parties and their solicitors jointly appointing a family arbitrator to decide the outcome for them. The arbitrator will be a specially trained barrister, solicitor or former judge, who will consider the evidence and then make a decision by applying the law in exactly the same way that the court would. The arbitral award is binding on the parties and can be enforced through the court if necessary.

The arbitration process has a number of advantages over court proceedings:

  • It is likely to be far quicker than the court, which struggles with an enormous caseload.
  • The procedure is more streamlined than the court process.
  • In very straightforward cases, the arbitration can be done just by submission of paperwork to the arbitrator.
  • The simpler procedure means less work is necessary and it should therefore cost less than court proceedings.
  • Arbitration is private, whereas court proceeding are not. While most family court disputes do not attract much media attention, a small number do. Arbitration allows high profile cases to avoid intrusive and judgemental press coverage.

It is even claimed that arbitration avoids the risk of encountering a grumpy, bad tempered and rude judge (of which there are a few). A grumpy, rude arbitrator is not likely to get many arbitrations from solicitors.

Arbitration can be used to decide financial disputes in divorce and between unmarried couples, and also disputes about children (although fewer arbitrators are qualified to handle the latter). The advantages of arbitration over court proceedings seem overwhelming. It is cheaper, quicker and you get the same outcome. Why would anyone choose court proceedings over arbitration?

And yet, although arbitration first arrived in family cases about 7 or 8 years ago, it is still quite rare. One solicitor arbitrator I know explained to me that the hardest challenge when considering arbitration is to persuade the solicitor acting for the other side to use it.

Solicitors can be very conservative. Many don’t like change or new things. Arbitration is (relatively) new and unfamiliar and a bit scary and many solicitors are more comfortable defaulting to what they are used to; the court.

There may also be solicitors who don’t like arbitration because they think that they can earn more fees by litigating a case through the court. That’s a disgraceful reason to advise against arbitration. No matter how much pressure solicitors are under to maximise fee income, this should never influence the advice that they give their clients, including advice about the best way to resolve their dispute. Sadly, in its early days, family mediation suffered from the same problem and even now there is a culture amongst too many solicitors that the only reason why a client is referred to a mediator is because the client must attend an initial Mediation Information & Assessment Meeting before he or she can then apply to the court.

It may also be that some solicitors are simply unaware of arbitration or at best have an only hazy idea of what it involves. I once met a family solicitor who I was amazed to discover had no real idea of what collaborative lawyers were; she had heard of them, but knew nothing more than that. It’s not unusual to encounter a family solicitor who is not collaboratively trained, but encountering one who had barely heard of it was astonishing. It may be that arbitration suffers from the same problem. I have struggled to persuade experienced and capable solicitors of the advantages of arbitration, often because they simply don’t know much about it.

It is vitally important that the parties in any family dispute are aware of all of the alternatives to court, and I therefore show the flowchart in this Resolution booklet to them and give them a copy of it. Another useful leaflet from Resolution about arbitration can be found here. It’s an excellent summary of the main alternatives to court including arbitration. Any solicitor who doesn’t ensure that their clients are aware of the different ways to resolve disputes, including arbitration, simply isn’t doing their job properly.


23 February 2019

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