Tag Archives: Duncan Brooks

Arbitration’s moment

Duncan BrooksDuncan Brooks discusses his experiences of arbitration both as an arbitrator and as a barrister representing a divorcing client.

Arbitration of family financial matters on divorce is possibly fastest-growing form of dispute resolution in England and Wales. Since the advent of the first family law arbitration scheme here in 2012, it has increasingly captured the imagination of divorcing couples who are frustrated with the delays, potential publicity and inflexibility of the court process, yet for whatever reason need an independent and binding decision made by a third party in order to move on with their lives. I am privileged to have been appointed as an arbitrator in seven cases to date, and to have been involved as an advocate in several more.

The arbitration process is inherently flexible. It is possible for those involved to request an arbitrator’s decision on all financial aspects of their divorce, or just on the issue of maintenance where a capital settlement is already agreed, or vice versa, or on a discrete issue such as child maintenance where there are no other ongoing issues. This flexibility also extends to financial disclosure, which can be ordered on a bespoke basis: there is no cast-iron rule as to use of the Form E, for example.

The majority of arbitrations in which I have been involved have taken a similar form to a court hearing, where each advocate speaks in turn and evidence is called and tested. However, this is not obligatory: I have been involved in two arbitrations where nobody gave oral evidence, as the people involved had agreed to deal with the issues simply by having their barristers present their arguments to the arbitrator. Even that is deemed unnecessary in some cases, and it is possible to get an arbitrator’s decision on the basis of written arguments alone, which can be very cost-effective for specific and discrete issues. Also, it’s open to the arbitrator to deal creatively with particular points that arise as part of the decision-making process: for example, in one case, I had to decide about the appropriate cost of re-housing. Rather than hear evidence sequentially, as is usual, I heard evidence from both parties concurrently – a process known as “hot-tubbing” – which meant that I could lead the questioning and explore properties with each party at the same time.

I feel strongly that the experience of arbitration for people going through divorce is better than the court alternative. Because the arbitrator is working for the people involved, he or she can devote the necessary time fully to pre-read all of the papers and ensure complete familiarity with the circumstances. There are no other cases competing for the arbitrator’s time, unlike in a court environment, and case management matters can be dealt with by email or over the telephone meaning that costly interim visits to court can be avoided.

The arbitration “hearings” take place in a non-court environment, which is usually less intimidating than a court setting, plus the coffee and sandwiches are better! In three of the arbitrations in which I have served as arbitrator, the parties have chosen to be referred to by their first names only.

Another advantage in present circumstances is that arbitrations remain entirely confidential – the press have no right to attend an arbitration, although they do have the right to attend court hearings.

The procedure saves time and, counter-intuitively perhaps, money too. There is no court diary to worry about, meaning that the decision can be taken sooner. This shortens the process of litigation and the ongoing costs reduce as a result. The actual hearing is usually much shorter than it would be in court, because of the ability of the arbitrator fully to familiarise him or herself in advance. As arbitrator, I have yet to take more than 1 day over the hearing, because I have pre-read the papers in full and will deliver a written award promptly after the hearing finishes. These are cases that might be listed for three or more days in court, with all the attendant stress and costs, plus a lengthy wait for a final decision afterwards.

Arbitration is a bespoke and modern method of resolving financial disputes on divorce, which contrasts favourably with the often archaic workings of our court system. For those seeking to divorce creatively, cost-effectively and with dignity, it is surely worth investigating.

 

d.brooks@qeb.co.uk

 

Why arbitrate?

Duncan BrooksDuncan Brooks discusses the rising prominence of family law arbitration in the out-of-court resolution of financial disputes

Arbitration has been a feature of alternative dispute resolution in the commercial sphere for many years now, but is a relatively new force in family law. The English Chartered Institute of Arbitrators was set up in 2012, which was when the first arbitrators were trained. Now there are 126 qualified family law arbitrators, including myself, operating all over England and Wales.

More and more people are choosing arbitration to resolve a financial dispute on divorce or separation (the process cannot be used to decide issues about the divorce itself, or about non-financial arrangements for children). In my view, the main advantages are (1) that the process (like collaborative law and mediation) is completely confidential, which is not the case for court proceedings (the media are generally entitled to attend family law hearings, and have on occasion reported intimate personal details of those going through the process); and (2) the parties are in control of who decides their case and when it is decided. The arbitrations I have conducted (both as arbitrator and barrister) have been dealt with far faster than they would have been via the courts, and the parties have chosen the person who will make the decision.

In my experience, the flexibility of arbitration is another good reason to consider the process as an alternative to court. I am aware of an arbitration about disputes over contents of the family home having been dealt with on paper, without there needing to be a “hearing”. Alternatively, the arbitration can take a similar form to a court hearing with submissions from counsel or evidence. In one arbitration I conducted as a barrister, we agreed to dispense with either party giving oral evidence, which reduced the tension of proceedings. This would not always be appropriate, though.

Because arbitration offers a quick way to resolve small points as well as complex and detailed cases, it works particularly well in the event that a partial financial solution has been reached in mediation but it has not been possible to crunch the last few points. Instead of taking the remaining issues to court with the attendant delays and possibility of reopening the matters upon which you have reached a consensus, you can refer them to an arbitrator and have the process finalised with a binding solution much more quickly and cost-effectively.

It is also a far quicker and cheaper solution where financial disclosure has been exchanged but it has not been possible to reach an agreement. Why rely on the overburdened court process when it is possible to limit further disclosure and obtain a decision within a short timescale?

The use of arbitration to make a binding agreement has been endorsed by the English court, which stated (in the case of S v S) that, “there is no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make the decision for them.” The court went on to agree that the same streamlined court procedure should be available in arbitrated decisions as is already available for agreements reached in collaborative law, meaning that the final approval of the court is given quickly in these cases.

Arbitration enables people working out financial arrangements on divorce to get a final decision quickly, at their convenience, at reasonable cost and in complete confidentiality.   It is the best way for those who can’t agree between themselves to ensure that private matters remain private on divorce.