As the pressure to divert the disputes between separating couples away from the court system to alternative forms of dispute resolution, such as mediation, it is perplexing that there is not more reliance on the arbitration route for couples. It is more cost-effective and gives parties significantly more control over timings, procedure and expenses. So, what are the barriers?
Unlike other forms of dispute resolution in family law, parties can choose their own Judge. It seems obvious but it offers parties the opportunity to pick from the absolute cream of the legal minds, both in practise and at the Bar, to adjudicate their disagreement.
Statute law regulates the arbitration procedure, and resembles the Court environment for clients without the higher costs and delays from other pressing court business. Parties with the help of their agents can select the location for any hearings too – evidentiary and procedural – in person or remotely.
They can agree the preferred procedure – whether evidence in person by way of affidavit or simply submission made by parties’ representatives. They can choose to afford their Arbitrator the ability to make all these decisions according to his or her own judgement. A decision with orders that flow from that has to be issued within 28 days of conclusion of any submissions or evidence. An arbitration judgment is as equally enforceable and binding as one handed down in court litigation, and can be appealed.
The cost is identifiable due to the fact that you have selected your arbitrator who is able to provide you with a prediction of fees. Arbitration is confidential and could be more appropriate for some parties disputing over sensitive issues such as relocation of children, alimentary payments, treatment of a specific asset, or indeed capital awards.
Imagine for the moment the client who wants to relocate with their child. Both parties face inordinate costs in disagreeing over this, but they want a judicial decision in their favour. Agents agree the appointment of an experienced family law barrister who knows the legal test in relocation cases. They agree that evidence will be heard by way of client affidavits and that the views of the child require to be taken. The arbitrator is able to appoint a child welfare reporter and orders the cost to be shared between the parties and appoints a date when all affidavits, written submissions and the report must be lodged. A reasoned decision is issued with the expected findings in fact within 28 days of the submissions and an order is issued. Potentially all resolved within a matter of weeks and at a predictable cost.
Seeing these advantages, it is surprising arbitration hasn’t been as popular as other forms of dispute resolution such as mediation. But digging deeper, two main issues could be hindering its widespread use. Firstly, both parties have to agree on the arbitrator, so without this agreement, they cannot proceed. Secondly, solicitors do not need to be trained in arbitration meaning many aren’t aware of how the arbitration process works, and therefore its benefits.With more knowledge, those reluctant would realise that arbitration could be easily adopted because the family law arbitrator only needs to be qualified. And the process requires similar advocacy to what lawyers would provide their clients before court.
Family lawyers would benefit their clients by offering arbitration as an option. It cannot be discounted that if we don’t, we will find our client increasingly left frustrated by the disproportionate cost of litigating in the courts. Frustrated by backlogs and delays, and pressured to accept outcomes which are more to do with process than justice.
Perhaps the profession needs to realise that this is a route not to fear or devalue as a method of meeting your client’s needs. Needs which may in due course cease to be resolved in the current court system.
It will take a degree of modern thinking and awareness of where the profession is heading but I truly hope that solicitors do wake up to the flexibility and effectiveness of this approach, and that it may quickly become the norm if the profession embraces it.
Fiona Sasan, Partner at Morton Fraser Lawyers
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