Alan asked me recently to talk about family law arbitration. I’m delighted to be given this opportunity for a first guest blog post on Divorce Finance Toolkit (hopefully not my last).
Let’s imagine a hypothetical conversation between two sisters, one of whom has just separated from her partner. The sisters are discussing how to sort out the unresolved financial issues. The sister confides in her sibling that the couple themselves can’t talk. The couple have considered the collaborative law process and mediation, but whilst these options are solid, neither are suitable in their circumstances. Fortunately, one of the siblings is a lawyer who offers sound and practical advice:
“It looks like you need to get a judge to decide the issues in the Family Court”.
Really? Let’s think about this.
The family courts are buckling under the strain of successive rounds of funding cuts. Court lists are packed with those unable to afford legal representation after the funding rug has been violently pulled from beneath the feet of those needing access to justice, but being unable to afford legal representation. I know this is an issue close to Alan’s heart as he set out in a previous post.
The reality is that family court cases are taking longer to be heard. There is a significant delay in the cases being listed. Add to the mix under-resourced court offices with often loyal and hardworking staff doing their best, but buckling under ever mounting work loads.
By and large, we are blessed with an excellent judiciary. But they too must be feeling the heat of the growing lists, the backlog of box work (where judges deal with all the paperwork that crosses their desk such as approving consent orders). The court staff , I suspect, are left disillusioned with life in the public sector with the ever present whisper of more change and further cuts.
So is the court really the default choice?
As a lawyer, and like Alan when he’s not moonlighting at Divorce Financial Toolkit, I’m solution focussed. This means I’ll promote co-operation, collaboration, and mediation. But now I will also promote arbitration in Brighton. The promotion of appropriate dispute resolution models is woven into the fabric of how we work at Family Law Partners. It’s in our DNA. On occasions, disputes need to be resolved by a tribunal’s decision, but the question I would ask is: “Does it have to be a judge in a traditional court?’
Quite what the fascination is with using the court has always been lost on me. But to be fair, let’s think of a few reasons we might need th
e court to help us.
- Structure. By structure I mean a clear timetable. But can’t you get that by reaching agreement with the other party about who does what and when?
- Light at the end of the tunnel. If you can’t agree a judge will decide for you. But do you really want to relinquish control to someone you’re likely never to see again?
- We always do it this way? Really? I have a sense lawyers often like the fact they can be insulated from making a difficult decision and hide behind the judge’s decision, but as adults shouldn’t we take responsibility for our lives and issues that impact on us (and our families)?
- Alternatively, the parties may want or need a decision to be made for them as they simply can’t agree an issue. But the trouble with failing to agree one issue is that this might leave everything else up for grabs. That is a risk laden strategy.
So, we can see some of the benefits of the decision process imposed by the family court but let’s assume a resolution can’t be achieved and on the basis the courts are not functioning efficiently, could there be a better solution?
Family Law Arbitration
I’m going to tell you how family law arbitration will work for you and your family. We all love a list so here is mine:
- Want a swift resolution for your dispute? Check. Forget putting your life on hold for 9 months plus waiting for the court listed date to come around.
- Want privacy? Of course you do. Do you really want people to see you going into a court? What if you meet someone you know in there – they are very public places. Family law arbitration is wholly private.
- Have a busy diary and want to fix the decision making around a date convenient to you and not a court? Sorted. Flexibility is one of the hallmarks of family law arbitration.
- Have a limited budget and need to control your spend on the legal process? You can tick that box.
- want to make sure the person making the decision has the time to understand the issues in detail? To have actually read all the papers beforehand and focus solely on your case and not a court list? No problem.
- Want to be sure the person making the decision is suitable in terms of experience and expertise? That’s covered. Many arbitrators tend to be retired or part-time judges.
- Want the decision to be legally binding so you finally have resolution? You’ve got it. You will get a decision from the arbitrator and you will both be bound by it. The argument is over.
So, what is family law arbitration?
It’s as simple as the definition pasted above. Arbitration is the use of an arbitrator to settle a dispute.
Family law arbitration can deal with many issues, but put simply, it is best for dealing with finances. It is, by design at present, not used to settle disputes in relation to children: their welfare can only be decided, quite rightly, by a family court judge. The qualifying process for family law arbitrators is overseen by the Institute of Family Law Arbitrators.
Family law arbitration is the (relatively) new kid on the block. Arbitration clients exercise more control over timing, the issues, the decision maker and the venue. Okay you pay for your tribunal and the decision maker – the Arbitrator – but the focus allows for a streamlined process and that will save you overall costs and time. It will be private. It will be convenient to your diary. You will keep control rather than being shoe-horned into a court list. You end up with a decision: the award. It’s legally binding. Isn’t that what the court gives you, but with greater delay, cost, inconvenience and inflexibility?
So, let’s go back to the start, assume the two siblings now ask you for some guidance on how to get a family law decision of a financial nature sorted quickly and with the minimum of fuss and expense.
What would you say? I know what I would.
Robert Williams is a Director of Family Law Partners and is a Collaborative Lawyer, Solicitor, Deputy District Judge and Family Law Arbitrator. He can be contacted on 01273 646903 or at [email protected]