If you know anyone who has been through the court system to resolve a matrimonial problem, chances are, they’ve told you what a harrowing experience it can be. But I wonder if they mentioned things like the packed court waiting rooms, the lack of privacy, negotiations taking place in the court corridors or stair well, never knowing which judge you will get and what time you will get to see him/her. And when you do get to see the judge, who has umpteen other matters in their list, not knowing how much time that judge has had to read the important court documents relevant to the case.
The court experience is not the easy fix that many individuals going through family breakdown think. At a time when emotions are high and life changing decisions have to be made, being advised it could be up to 18 months to get a case resolved via the court process will be the last thing most people will want to hear.
This obliges us as family lawyers to consider alternatives. In fact, we consider with all of our clients those alternatives right at the start, looking upon the court process as the last rather then the first option, in all but the minority of cases. Within Hart Brown’s family team we have two mediators and three Collaboratively trained lawyers, so we actively encourage alternatives to the court route where this is appropriate for our clients.
In the last two years, a new alternative has emerged in the family law toolbox. Family arbitration was developed to enable couples going through family breakdown to resolve financial disputes more quickly, confidentially and in a more flexible way than will ever be available via the court process; even more so in times of austerity with Government cuts eating away at an already overloaded court system.
An arbitrator, who is appointed by the parties with help from their lawyers, will deal with all stages of the case from start to finish and make a decision (an award) just as a judge would. That decision is final and binding. The arbitrator applies the law of England & Wales, currently only on any financial and property issue arising from the breakdown of a relationship where the parties have not been able to reach agreement. But by July 2016, the Children Arbitration Scheme will be launched which will enable an arbitrator to be appointed to make awards in matters relating to children, subject to their being no safe-guarding of children issues.
The advantages of arbitration include speed, bespoke financial information gathering and giving, choosing where and when you have hearings, tailoring what you need from the arbitrator to suit what issues are in dispute. It is also possible to use arbitration to obtain a written award based on paper representations, which avoids the parties having to give oral evidence, if this is not considered necessary.
Even though the arbitrator has to be paid for by the parties, the costs involved in using the court route, a last resort where other attempts to settle matters have not proved possible, will invariably be higher if one factors in:
- The potential to have to duplicate financial disclosure;
- the waiting involved in getting court hearing dates (which necessitates updating the disclosure – at more cost);
- the risk a supervening event might change the outcome e.g. an inheritance is received
- the travel and waiting time once you’re at court; and
- in some (worst) cases, being in a court ‘floating’ list which can mean not having any particular judge allocated to the case with the result that a judge is not seen early enough in the day to make the hearing as productive as it should be (making a return to court on another date with limited control over when that might be highly likely).
None of the above would happen in arbitration as the arbitrator is yours for the day, s/he has read all the papers, s/he knows the issues involved and will be able to deal with the case swiftly, giving it undivided attention because there will be no other separating parties craving that arbitrator’s attention.
And another thing is guaranteed. The parties have privacy, a comfortable meeting room and other decent facilities. Far better than the crowded waiting room, hushed or heated stair well negotiations, the absence of privacy and a judge, through no fault of his or her own, who has numerous other cases to deal with that day.
Arbitration is not suitable for every case. We would not recommend it in cases of extreme non-disclosure where coercive court powers are required or where there are third party interests at stake (unless they too, are willing to be bound by the arbitration process).
If you want to find out more about arbitration speak to one of our lawyers in the family department or visit The Institute of Family Law Arbitrator’s website http://www.ifla.org.uk/