The Institute of Family Law Arbitrators (IFLA) launched the Family Law Arbitration Scheme in early 2012. The scheme created a new form of dispute resolution for family law disputes. It enabled couples to appoint a chosen arbitrator to deal with their case and, importantly, impose a binding award.
Until recently, Family Law arbitration was confined to financial and property-related disputes. It has now been extended to children-related disputes. From July 2016, parents will be able to arbitrate disputes concerning their children.
For many parents, mediation provides the appropriate forum for resolving their children-related disputes. It is of course far better for the children if their parents can agree matters between themselves. However, it is not possible or appropriate for parents to mediate in all types of cases. Sometimes, parents are able to co-operate to a certain extent, but need the input of an arbitrator who can determine the outcome, rather than a negotiated-agreement-facilitator/ mediator.
Certain types of children-related disputes will, at least initially, be excluded from the scope of Children arbitration; for example, cases involving local authorities and disputes with a cross-border element. However, it is anticipated that the scope of Children arbitration will be extended further in the future.
What are the advantages of arbitration as opposed to court proceedings?
Arbitrations are likely to be held in barristers' chambers or solicitors' offices, which provide a much more informal setting, than that of the Court. Parents tend to feel more relaxed and more able to deal with the issues at hand. The more informal format lends itself much better to effective co-parenting in the future than the Court process. The Court process can inhibit the parents' abilities to meet their children's or their own needs, and harm their future relationships. Arbitrators have the luxury of time and a manageable case-load and so take greater care to explain legal jargon and put the parties at ease, than their rather more abrupt Court counterparts.
The arbitration process is neat and efficient. Cases can be heard much more quickly and therefore parents tend to get decisions much more quickly from an arbitrator than from the Court.
Greater efficiency also means greater costs savings. Although there will be the upfront cost of the arbitrator, which can put parents off initially, arbitration proceedings often cost less than court proceedings because they are dealt with much more quickly and therefore save weeks' of solicitor correspondence. The process is also more stream-lined. Arbitration hearings do not tend to last as long as Court hearings and so often cost less. They also start on time and so parents do not pay for their lawyers to wait around at Court until the Judge is able to hear them.
Although the court system is meant to ensure judicial continuity, in practice this is not always possible, and if it is, it can cause delay. Once appointed, the arbitrator will remain involved and conduct the entire arbitration up until the imposition of the award. Short notice hearings are possible and can be dealt with informally over the telephone or Skype. Unexpected problems can, therefore, be resolved quickly by someone who is familiar with the case and the family.
This is one of the main attractions. The arbitration process is completely confidential and there is no risk of media intrusion. This is of course likely to appeal to high-profile parents and those in the public eye. The recent press reporting of the litigation regarding Madonna and Guy Ritchie's son, Rocco, is illustrative. With arbitration, the matter remains private.
Parents can choose a date and time for the arbitration that suits them both. They can choose a convenient venue and even the procedure to be adopted. For example, some issues may not require the parties' attendance and so can be dealt with by email. Most importantly, the parties can choose their arbitrator. The Court process is much more prescriptive, which can also be expensive, and does not afford the parties anywhere near as much choice. For example, the parties cannot choose the date and time of a hearing, the venue, the procedure or the Judge.
Arbitration awards are binding and enforceable by the Court as if they were judgments.
The extension of the arbitration scheme to children related disputes is positive news for separating parents who will have access to a qualified, experienced and reliable arbitrator able to take their dispute from start to finish without the frustration, delay and change of judicial tack inherent in what is left of the family justice system.