Sir Jonathan Cohen, barrister and a former High Court judge, explains the importance of arbitration in family law disputes and asks why this valuable resource remains under-utilised.
A new campaign by the Family Lawyers Arbitrators Group (FLAG) aims to improve public understanding and awareness of family arbitration as an effective alternative to court litigation in children and financial disputes. At a time when the family courts are under significant pressure, with substantial backlogs and persistent delays, the campaign raises an important wider question: why is arbitration still so underused despite its clear advantages?
Family arbitration has many benefits. In most cases it offers a quicker, more flexible and more cost-effective route than traditional litigation in addition to reducing the emotional strain often brought on by lengthy court proceedings.
Yet despite these advantages, arbitration has not entered the legal mainstream to the extent many practitioners had hoped. Why not?
Overcoming obstacles
One reason is to do with mindset. Many family lawyers and clients alike are used to viewing court proceedings as the default route when an agreement cannot be reached. Litigation remains the familiar option.
A second reason is perception. Many clients assume that arbitration is something for wealthy couples only. Unlike the court system where there are salaried judges, in arbitration the parties must pay the arbitrator directly.
However, while arbitration can involve a greater upfront cost, ultimately it is likely to prove less expensive than litigation. It avoids the cost of prolonged court proceedings, repeated hearings and ongoing delays which drive costs up.
Another obstacle is confidence in the process itself. Some solicitors remain cautious about recommending arbitration to their clients because parties are able to choose their arbitrator. This in turn can lead to concerns about selecting the wrong individual, a “rogue” arbitrator, or facing criticism from clients if they end up with an unfavourable outcome. By contrast, court proceedings remove that element of choice; to put it simply, you don’t choose your judge.
Education and awareness
So, what can a campaign group like FLAG do about this state of affairs? The answer must be education.
Greater awareness is needed not only among the wider public, but also within the legal profession itself. While arbitration has become increasingly familiar in London and the South East – especially in financial remedy cases – there is a regional disparity in its use elsewhere in England and Wales. In areas where fewer practitioners and judges have direct experience of arbitration, it remains a leap in the dark.
That lack of familiarity matters. In London, for example, many arbitrators are also experienced deputy judges, which gives clients and solicitors confidence in the process as these arbitrators can be presented as people with judicial experience.
But the pool is smaller beyond these areas, and as a result, so is the degree of confidence in arbitration as an option for clients. We need to try to get through to practitioners and the judiciary who hear these cases outside of London and the South East so that they are aware of the benefits of NCDR.
The speed factor
The strongest argument in favour of arbitration is speed. Parties are not required to wait months for court hearings. Instead, they can agree a timetable that suits their circumstances and obtain a binding decision far more quickly. That flexibility can have a transformative effect on families longing to move forward with their lives.
In financial remedy cases, for example, court delays may prevent parties from marketing a property or accessing funds, and thus prevent them from being able to move on with their lives. For separating families, the emotional benefit can be just as, if not more, important than the financial one. Protracted disputes leave former partners locked in an inappropriate living arrangement, where they are still living unhappily under the same roof. Such a situation prolongs stress and uncertainty for everyone involved, particularly children. By contrast, earlier resolution, through arbitration, allows families to move on sooner and begin to rebuild their lives.
The speed factor is equally relevant in private children law disputes. Cases concerning arrangements for children, such as where they will live and how often they should spend time with each parent, often fall within a narrow compass but are urgent. Waiting a year or more for final resolution through the courts can be immensely damaging for both parents and children. Arbitration, on the other hand, offers a much faster route towards finding a constructive resolution in these cases.
Hybrid solutions
That said, arbitration will not be appropriate in every dispute, particularly in cases where there are serious allegations of non-disclosure, coercive or controlling behaviour or in cases likely to require extensive court enforcement powers.
In some situations, hybrid models such as ‘Med-Arb’ may offer a solution. Under this approach, parties begin with mediation before moving to arbitration if issues remain unresolved. There are various adaptations which can be utilised and although not common in England and Wales, they have gained popularity in various other jurisdictions and, in this writer’s opinion, have much to recommend them. In addition, the parties engaged in NCDR can opt to have the same arbitrator deal both with their finances and children’s disputes, something that is hard to achieve within the court system.
More broadly, the continued shift towards NCDR appears likely to accelerate. Unless there is an urgent injection of cash and extra resources into the family justice system, pressure on the courts will continue to make out-of-court resolution increasingly attractive.
FLAG’s campaign is significant not simply because it promotes arbitration itself, but because it reflects a broader shift in how family disputes are being resolved. For many separating couples, the future will lie less in the courtroom and more in flexible, private forms of dispute resolution. It is important that family lawyers, particularly those with experience as arbitrators, ensure solicitors are properly informed about the process so they can provide clients with the best possible advice and help families to start rebuilding their lives.
About the author
Sir Jonathan Cohen’s practice as a barrister comprised both high-value financial and complex child law cases. As a full-time High Court judge, he presided over numerous significant financial disputes, handling directions hearings, financial dispute resolution (FDR) appointments, and final hearings. His judicial experience also includes a substantial number of private law children cases, addressing matters such as international relocation and disputes over residence and contact. Known for his approachable demeanour and incisive approach, Sir Jonathan Cohen has returned to chambers, offering his expertise in early neutral evaluations, private FDRs, mediations and arbitrations.
