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I don’t need to read this because I know all about arbitration

by Tony Roe
11 September 2015

No family lawyer should be ignorant of the mechanics of arbitration. The Law Society’s Family Law Protocol requires us to consider with clients all forms of dispute resolution, including family law arbitration. How many of us do so? The new, fourth edition of the Protocol will be out soon and will reinforce the significant duty we have to advise our clients properly.

There have now been over 50 family law arbitrations. Of course, some will suggest that this is a modest figure, but any new method of alternative dispute resolution (ADR) takes time to bed in. In fact, according to Resolution, a partner of the Institute of Family Arbitrators (IFLA), the number has doubled since S v S [2014] EWHC 7 (Fam) last year. This judgment by the president of the Family Division gave the strongest possible endorsement of the IFLA scheme.

But it is only for the well-heeled, isn’t it? 

Following the launch of family law arbitration more than three years ago, the media suggested it would be the province of the very wealthy, those who could afford to pay privately for an arbitrator, and multi-millionaires shy of press coverage. Not so. 

Isn’t it costly?

A number of individual arbitrators have offered modest fixed fees. Most recently, one London firm has gone public with its own fixed-fee offering aimed at middle-income families.

How can it be enforceable when a judge must exercise discretion in family finance cases?

In January 2014, a Guildford County Court case created a bit of history. The application for the approval of a consent order, lodged with the court, was transferred to the president at his direction and reported as S v S. What made it special was that the consent order intended to give effect to a family arbitration award. The president said that, in the absence of some very compelling countervailing factor(s), the arbitral award should be determinative of the order the court makes.

What’s so good about family law arbitration?

Arbitration has many advantages over court, including speed, flexibility and confidentiality. While media representatives can attend family court proceedings, they are barred from arbitration hearings, so the entire process is wholly confidential.

Parties can pick their arbitrator, how the arbitration proceeds and when. There is no court-imposed timetable, so parties avoid any delays. There is even potential flexibility about the procedure and the scope of the arbitration itself.

There are plenty of other drivers that make arbitration the obvious choice, notably significant delays in the family court. One can wait months for a hearing date in a divorce financial application, meaning that litigating parties cannot get early closure.

Awareness is growing, both among practitioners and the judiciary. Mr Justice Mostyn has stressed that privacy can be guaranteed in this ‘much-to-be-welcomed scheme’. A number of leading cases have mentioned it, including the Supreme Court in Wyatt v Vince [2015] UKSC 14.

Currently, the scheme covers financial disputes including those arising from divorce, civil partnership dissolution and cohabitation breakdown, but also certain maintenance and variation matters. It extends to claims on inheritance from, for example, a child or a spouse. Its flexibility means that in appropriate cases, subject to the agreement of the parties and the arbitrator, the arbitration can be dealt with on paper. Disputes are resolved exclusively by applying the laws of England and Wales, in the same way as the family courts.

What about private law children disputes?

There is support to extend arbitration to non-financial children matters. This is currently being considered by IFLA.

Conclusion

Family law arbitration, private though it may be, can have significant costs advantages. Cutting the time taken to bring resolution to otherwise protracted financial litigation, which can last well over a year in the family courts, means families can move forward with their lives more quickly and cheaply.

Are you ready and sufficiently well-informed to advise your clients about the benefits of family law arbitration?

About the author - Tony Roe

Tony Roe is principal solicitor and family law arbitrator at Tony Roe Divorce & Family Law Solicitors. He is a member of the Small Firms Division Reference Group and the Family Section Advisory Group.

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