Duncan 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.