Arbitration is now available for divorce cases in England and Wales; this article by a figure in the industry explains the advantages of such a process.

As readers will know, divorce and marital disputes are important wealth management issues because of the large sums that can be involved. What, after all, is the point of patiently accumulating a fortune through hard graft and entrepreneurship for it to be destroyed by heavy divorce proceedings because of a lack of foresight and planning for the unhappy event of a split? However unromantic this might seem, smart wealth management must take such issues into account. In this article, the author, Graham Coy, partner at Mundays and a member of the Institute of Family Arbitrators, writes about the issues of arbitration in such disputes and how this sits alongside other ways of resolving these matters. The issue relates to the legal system in England and Wales; the Scottish legal process is different.

The editors of this news service don’t necessarily share all the views expressed but are grateful for such insights, and invite readers to respond.

Arbitration has been a familiar presence in resolving commercial disputes for a considerable period of time. Arbitration is now available to those going through separation and divorce to resolve their financial issues.  It represents a very attractive alternative to the Court process. 

It is widely acknowledged amongst specialist family lawyers, the vast majority of whom are members of Resolution that the court process in England and Wales is in crisis. 

Primarily this is due to government cutbacks and a significant increase in workloads for Judges following the virtual abolition of “legal aid”. Those who once would have been eligible for legal aid and who would therefore have been represented are now having to represent themselves. Without the benefit of legal advice fewer agreements are being reached which means that Judges are having to spend more and more time on cases that once would have been resolved by agreement. 

Arbitration in family cases is now part of the established landscape and offers significant advantages to those who have not been able to reach agreement. 

Family Arbitration has recently received a further endorsement by Sir James Munby, president of the Family Division of the High Court in a guidance published in November 2015. 

Family arbitration is available to settle any dispute relating to property, pensions, spousal and child maintenance, school fees and is available both for those who have been married and who are divorcing and those who have never married but are separating, normally known as “cohabitees”.  What the scheme does not cover is divorce itself and arrangements for children; for example, where the children should live and what time they should spend with each of their parents. 

Having said that, it is anticipated that during the course of 2016 family arbitration will be extended to deal with disagreements about children. 

Benefits

The advantages of family arbitration are overwhelming.  

The court process can be long, complicated and expensive. It can also by its very nature increase conflict and confrontation during an already stressing period. Family arbitration provides a real alternative. 

The advantages of family arbitration are: 

•    Speed:
Arbitration in family is a lot quicker than going through the court process. 
•    Consistency: 
Unlike the court process the same arbitrator will deal with matters from beginning to end. 
•    Flexibility:
Couples can choose the venue, the times and dates for meetings (so there is no possibility of one or other being unavailable).  
•    Choice of arbitrator:
Again unlike the court process the couple and their lawyers can choose the arbitrator most suitable to their case. There are now 159 trained family arbitrators and amongst them are retired Court of Appeal and High Court judges, QCs, barristers and solicitors.  All of them are extremely experienced and all have undergone thorough and extensive training before qualifying as arbitrators.  
•    Versatility: 
Couples can choose whether the arbitration requires oral evidence to be given or whether it can be dealt with by the arbitrator looking at papers submitted to him or her.  
Couples can also choose the issues that they need the arbitrator to make a decision about. 
•    Confidentiality: 
Family arbitration is totally confidential. Unlike the court process, the media have no right to attend and are not entitled to see any of the documents that may be submitted to the arbitrator. There is no possibility of a hearing open to the public as there can be in the court process.
•    Expense: 
While the couple do have to pay the Arbitrator’s fee, because the whole process is much shorter, arbitration will prove to be far less expensive than the court process. 

Family arbitration is regulated by the Institute of Family Law Arbitrators. 

The process is begun by using the IFLA website and identifying a family arbitrator who is then approached and asked to accept an appointment. Otherwise the institute will appoint one. 

It is then a matter for the arbitrator concerned and their legal advisers to decide how to make the most of the arbitration process and to arrange a final meeting or hearing if one is considered necessary following which the arbitrator will make his or her decision. 

An award made by an arbitrator is as enforceable as a court order.

Family arbitration needs to be distinguished from other forms of dispute resolution. It is not mediation or collaboration where matters are resolved by agreement. 

Arbitration can work alongside Mediation and Collaboration but the essential difference is that in arbitration a suitably qualified person, the arbitrator, makes a binding decision to resolve issues which cannot be resolved by agreement. 

The very significant problems in the court system identified earlier in this article will get worse rather than better and family arbitration represents an attractive viable alternative to couples who cannot reach agreement and its advantages over the court process are overwhelming.