Family Arbitration can rescue a mediated divorce from crumbling into a nasty expensive court battle, so should more mediators be paying attention to it as a resource for their clients?
In the first of a short series of articles, I explore how family arbitration could become a powerful new tool in the mediator's toolbox, as it has done over the pond in the US and Canada. In part two I look at whether it saves the client money and whether the arbitrator's decision is always enforceable by law, and in part three I will discuss the likelihood of family arbitration growing strongly in the UK, or will it go the way of collaborative law, which (so far) is still largely unknown by the general public as an option for navigating divorce?
Family Arbitration is the new kid on the block in the family law community in England and Wales, and the potential benefits to divorcing clients are immense. My interest in finding out more about family arbitration was originally sparked by a conversation with New York Mediator Ken Neumann, who described how useful arbitrators could be in un-sticking a mediation process. "Sometimes," he explained to me, "the couple can't agree on one issue, and they just want someone else to decide for them."
An excellent talk given by UK Arbitrator Mena Ruparel convinced me that the rise of family arbitration in the UK was a cause worth supporting. I made contact with several Arbitrators via email on a Friday evening, and to my surprise, received a cascade of responses by the Monday morning! I was struck by the obvious passion and enthusiasm for arbitration amongst a wide range of family law professionals who have qualified as family arbitrators, ranging from barristers, mediators and collaborative lawyers. I include their contributions in the following articles, with thanks.
What is family arbitration for?
"The beauty of arbitration is that it is suitable for both discrete points such as pension sharing and dealing with all matters in dispute. At the time the parties sign up to arbitration they agree to be bound by the arbitrator's decision. Arbitration takes place in private - so works well particularly for high profile couples." Margaret Kelly, Family Lawyer, Mediator, Collaborative Lawyer and Arbitrator at Josiah-Lake Gardiner
"Arbitration is a fantastic tool for resolving issues where there is an agreement on most things but perhaps just one sticking point. However it can also be used where no agreements have been reached. Solicitors and mediators should understand the importance of family law arbitration and should always consider it as an option for their clients. As the courts grind to a standstill through financial cuts, the withdrawal of most legal aid and years of under-funding, it is becoming increasingly difficult for separating couples to resolve their issues quickly and efficiently. Arbitration is flexible. It can be used by litigants who are legally represented and those who are not. It can be a lot less formal than going to court and it can be used to resolve a single financial issue or all financial issues. There is still a degree of ignorance amongst solicitors, barristers and mediators about FamilyArbitration and a mistaken view that Arbitration is just for rich people. That is not the case and ultimately it can actually work out cheaper than going to court as the parties have much more control over the process. Unfortunately family Arbitration cannot be used to resolve disputes over children." Nadia Beckett, Beckett Solicitors
Suzanne Kingston, Family Partner at Withers LLP, spearheaded the Family Arbitration course in England and Wales and has been involved in training all of the family arbitrators to date.
She believes that arbitration is likely to become more prevalent than ever due to the problems with the current court system. She advocates considering arbitration as an alternative and suggests thinking about this at the beginning and part-way through a case to ensure that clients are given every available opportunity.
How could arbitration come to the rescue of a non-adversarial divorce process?
"It can save a mediation from failure when one or two stubborn issues remain. The Arbitrator can be instructed just to resolve those remaining points over which the parties have agreed to disagree. The unpleasant conflict of a court case is thereby avoided, the settlement remains one achieved in a consensual manner." David Walden-Smith MCIArb, Barrister & Family Arbitrator
In other parts of the world, including the United States and Canada, when a mediation process founders, an arbitrator is brought in if the couple wish it, to resolve the disagreement for them. This is also how it can work here - but currently not enough solicitors are informing divorcing couples adequately of this option.
When a Mediation fails to bring agreement on all aspects of the divorce, instead of ending up in court - where the whole process can unravel and begin right back where you started, losing all the agreements already made - with a Divorce Arbitrator that single sticking point can be resolved. And quickly (compared to waiting months for a court date).
Unfortunately (in my opinion) this is not currently possible in the UK if the Collaborative Law process gets stuck - it is only an option for mediation, which can continue on after the particular issue has been decided by the arbitrator.
Even if a financial planner gives clear advice on how a pension could be split or the division of property assets, it may be that the parties would like an adjudication from the Arbitrator who will write their award and make a legally binding decision. The Arbitrator can also deal with discrete elements of a case so if there is a mediation where there is one issue that needs to be resolved, this can be referred to arbitration keeping the rest of the agreement in tact.
"One of the great advantages in family arbitration is that it can "unstick" stalled negotiations. Couples very often sort out the house, investments and maintenance payments for themselves but can't agree on how to divide up the pensions, or more commonly, how to sort out who is allowed to keep running the family business partnership. These sort of discrete issues are ideal for family arbitration." Derek Marshall, Barrister, Mediator and Arbitrator, College Chambers Southampton
It would seem sensible for McKenzie Friend's to acquaint themselves with the benefits of arbitration to provide a much needed resource for couples whose usual choice may be to go to court without representation from a lawyer. However there seems to be a reluctance at this early stage to encourage Self Representing Litigants to consider arbitration as an option en masse.
And how will divorcing and separating families in general get to know about family arbitration as an option? It seems that it will rely on solicitors sharing the good news. And there's the rub.
"On arbitration, I remain of the view that the key market for some time to come is going to be family law professionals, but that is certainly intended to include mediators. Indeed, the enthusiasm from the mediators I've spoken to for arbitration as an impasse breaker has been noticeable. Obviously if clients get to know about it they may be more likely to ask their lawyer/mediator about it as an option, but most arbitrators would be wary in these early days at least of acting as an arbitrator for litigants in person. Whilst the advantages of the scheme in terms of speed, flexibility and confidentiality etc are easy to convey, the details of exactly how the scheme works (interaction with court, restrictions on involving third parties etc) are rather more esoteric and the main task to date has been to try to get mainly lawyers to understand these issues and indeed to recognise that it isn't mediation or collab." Nigel Shepherd, Partner, family & collaborative lawyer & family arbitrator for Mills & Reeve LLP
So it seems to me that family arbitration could well be the White Knight who charges in at just the right moment to save the mediation damsel from being gobbled up by the dragon of a courtroom divorce battle, rescuing the family from all the additional costs and misery of a full scale adversarial divorce.
But will the news about this new tool in the divorce toolbox be able to get through the castle gates if the drawbridge is kept locked and bolted, because solicitors and the public remain largely oblivious to it's benefits?
Part Two of this series of articles will focus on whether arbitration really does save the client money compared to a court-based divorce, and whether the arbitrator's decision is always enforceable by law.
For more information regarding Family Arbitration, refer to the IFLA website: http://ifla.org.uk/.
Suzy Miller