Will transparency in the courts push more clients into ADR?

It’s clear the legal landscape of family courts is changing as we move deeper into 2024.

At the beginning of January, the BBC reported that the pilot scheme to allow journalists and legal bloggers to report on cases from three family courts in England and Wales was to be extended to 16 more. This means that 19 out of the 43 centres in the two nations will be part of the ongoing Transparency Pilot scheme.

While families and social workers will remain anonymous under the scheme, reporters will be able to speak to families about their cases, quote from documents and describe what they see and hear in court, adding yet another layer of consideration and pressure on families entering the court system.   Although the scheme is in the pilot stage, this is something that Family Law practitioners will perhaps need to consider moving forward, and it may be a valid reason for more clients to look at alternative ways to resolve their family issues.

Mediation and Arbitration are the most common forms of Alternative Dispute Resolution in Family Law, and it is likely that they will grow increasingly popular should the transparency scheme be rolled out to private law.  For practitioners who don’t offer arbitration, understanding exactly when arbitration may be a better route for clients is something that June Venters, KC, considers here.

Could Arbitration be a more suitable option?

The benefits of arbitration

Privacy: One of the key benefits to arbitration is the private and confidential setting in which it takes place, something that can be very important in family matters where sensitive issues are involved. Parties can select an arbitrator with expertise in family law or more specific expertise in finances or children law, depending on the issues they wish to resolve.  Parties can also choose when and where to meet, which brings the added benefit of flexibility into the process.

As the Transparency Pilot continues to roll out in England and Wales, firms may see an increase in families concerned about the details of their relationships being published in the press. Anonymity goes some way to help alleviate this, but for many, the idea alone of journalists documenting their trial is already a bridge too far.

For any clients that voice their worries about this, the confidential nature of arbitration may be an important factor. For high-profile couples this should definitely be recommended as a way for them to reduce media attention.  Engaging an arbitrator is a little bit like hiring a private judge as a legally binding order is produced at the end of the process, removing the need to go to court completely. The arbitrator will make a decision based on the written or verbal evidence provided by both parties. By contrast, a mediator does not make the final decision but helps a couple reach their own settlement through agreement. That said, arbitration and mediation can complement each other as it can be used to resolve single issues.  The arbitrator may consider that mediation would benefit the couple to reach an agreement and would then suggest this. Mediators can also recommend arbitration if mediation breaks down or if an agreement is reached in mediation on most but not all issues. It is therefore possible for a mediator to refer a specific part of the dispute to arbitration, in order to resolve the sticking point that may be preventing the mediation from succeeding.

Speed: Arbitration typically results in a faster resolution compared to court proceedings, which can be especially beneficial for families looking to address specific issues promptly. By bypassing the court system, arbitration helps parties avoid the potential delays associated with congested court schedules.  Arbitration offers a legally binding solution to help resolve this issue of ongoing delays.

Cost-Effectiveness: While parties involved in arbitration may incur fees for the arbitrator’s services, the overall costs can be lower than those associated with lengthy court battles, including legal representation, court fees, and related expenses.   Many arbitrators also offer a fixed fee service allowing the parties the benefit of full transparency on costs.

Choosing the right Arbitrator

Taking all this into account, a confidential and legally binding solution such as arbitration may become a real consideration for your clients moving forward and they may look to you for help in selecting the right person.

Selecting an arbitrator with the right experience for your clients may be an important part of the process and the Institute of Family Law Arbitrators may be a good place to start.

June Venters KC is an accredited member of the Institute of Family Law Arbitrators and is here to help.

For more information on Venters Solicitors, Arbitration Law, and how it can help you and your family, please contact us via 020 7277 0110 .

Written by June Venters KC