Family Law Arbitration

Family Law arbitration

Yesterday saw the launch of family law arbitration in England and Wales. The new dispute resolution scheme is to be run by the Institute of Family Arbitrators, a joint venture of family lawyers’ groups and the Chartered Institute of Arbitrators.

The aim is to enable separating couples to resolve certain disputes, arising from the breakdown of their marriage, away from the courts. Instead, they would appoint an experienced family lawyer specifically trained to arbitrate the dispute in private.  Such arbitrations would be used to resolve a range of disputes, including financial issues and certain inheritance claims.

It seems that this is an entirely private initiative, launched by lawyers, rather than being backed by any legislative changes.  The advent of family law arbitration is potentially a significant development for the resolution of disputes arising on divorce. Lawyers used to think that binding arbitration could not lawfully be used in family disputes.  Whilst some legal experts have suggested that family arbitration rulings may now be binding under the Arbitration Act 1996, the position is not clear.  It may be that some agreements reached will need to be drawn up into a court order, to be endorsed by a judge.

The scheme will be nearer to the court-room process than other alternatives to court ,  such as mediation and collaborative law.  However, there are certain important, and arguably advantageous differences with arbitration.

Under the court system, the parties can never choose the judge they want to appear in front of.  Parties to an arbitration will specifically choose their arbitrator for their appropriate expertise or specialist knowledge. This would be attractive not only to the parties, but also to their lawyers. There is also something to be said for the flexible approach of arbitration - it is not bound by the many rules that are imposed in the court process but rather has a more dynamic structure which means that it be individually tailored to the parties’ needs. The arbitrations also take place in private, whereas the media can now access certain family court hearings.  This guarantee of privacy will be particularly attractive for more high profile divorcing couples.

Reaching a financial settlement on divorce  can be a very stressful and difficult experience for separating couples.  We work closely with our clients in an effort to try and avoid proceeding to court, wherever possible, exploring the various options available to them.  This new scheme may be a useful addition option available to separating couples, to help them reach a settlement, avoiding the costs and acrimony which can be generated through the court process.

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