benefits of arbitration

The Benefits Of Arbitration In Family Law

Further to our coverage of the Birmingham Law Society’s Bi-annual Family Law Conference, we look at the talk by Nicholas Allen QC regarding the benefits of arbitration over litigation.

There are many known benefits to arbitration in every area of law, not just that of commercial or business. Family law is showing increasing numbers of cases being decided by arbitration, an option that Mr Allen eagerly promoted at the conference.

Mr Allen QC, of 29 Bedford Row and St Ives Chambers, specialises in high value matrimonial finance work and is a qualified arbitrator (Finance) through the Institute of Family Law Arbitrators (IFLA) scheme. He also co-authored the FLBA’s ‘Good Practice’ guidance for FDR Appointments much of which was later included in similar guidance published by both Resolution and by the Family Justice Council in 2012.

Stressing that arbitration is not just for high value cases, Mr Allen encouraged solicitors to advise clients of the benefits of arbitration over litigation.

Arbitration may appear to clients to be more expensive than litigation in the initial costs, as an arbitrator would need to be paid, however the costs can be shared between the parties, and with the wait for court cases, the cost of barristers and possible extra expenses of travel for all involved, there may be an overall cost saving.

Other than cost saving for clients, benefits can include being able to arrange a meeting and conclusion quicker than a court case, the proceedings taking place in private, and the parties able to choose the location for the meeting which can be especially helpful to those with disabilities who may struggle in some of the older, less accessible courts. With parties able to both choose the arbitrator if they have one they can trust, parties can also set the procedure to be used in the meeting and only discuss issues that need resolving.

Speaking to Today’s Family Lawyer, Mr Allen QC said:

“The Family Court is under ever-increasing strain and one of the consequences is routine over-listing which means that through no fault of their own judges have insufficient time to pre-read both for FDRs and Final Hearings. There are also delays of often many months in getting a hearing date. Arbitrations are a cost-effective way of ensuring an early hearing, on a mutually convenient date, complete privacy (no risk of the media attending) and control over the choice of judge who has sufficient time to pre-read and who will deliver a reasoned award in writing within a matter of days or, at most, just a few weeks.”

However, there are some disadvantages to arbitration though, and these must be made clear to clients.

“No one should think arbitration is a dress rehearsal for the real thing”

As shown through various cases where an arbitral arrangement has been appealed through the courts, the grounds to set aside a decision are very narrow. In the recent case of BC v BG [2019] EWFC 7, a wife failed to overturn the financial award made in arbitration. Ms Clare Ambrose, sitting as Deputy High Court Judge, found that it would be exceptional for a court to go against an arbitrator’s decision and would only be in very narrow circumstances, such as a supervening even or error of law by the arbitrator.

With supporters such as Mostyn J confirming arbitration is a beneficial and viable option in family law, when resolving issues of a relationship breakdown, it is certainly an option lawyers should be exploring with their clients. Although not suitable for all cases, due to the arbitrator not having the powers of a Judge, each case should be considered individually. The Institute of Family Law Arbitrators has produced a guide that can be found here.

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