In this second of a short series of articles, I explore how family arbitration could provide an element of psychological security on the bumpy road of the divorce journey. I interview a range of family arbitrators about whether Arbitration saves the client money, and whether the arbitrator's decision is always enforceable by law.
As the court system struggles to keep it's head above the rising fiscal tide, the reduced access to legal aid for court cases and ensuing explosion of DIY divorces clogging up the already overburdened courts, a long term viable solution needs to be found - and found quickly.
But isn't it already here? Despite some serious battles for recognition and still a long way to go to become established as the divorce option of choice, Mediation is surely the intelligent way to resolve differences of opinion during a divorce. However, the reality is that sometimes it's necessary to agree to disagree on some issues - and that's where an Arbitrator has such a powerful role to play.
That disagreement can be handed over to a specialist in that particular field, an Arbitrator, and their decision allows the mediation process to then continue, or be brought to a happy conclusion.
"The parties can choose the venue, the time - and the date of the arbitration as well." Liz Cowell, Partner Pannone LLP
It's a bit like when seat belts were brought in. I remember ardent Liberals complaining that enforced wearing of seat belts was denying people their right to take care of their own safety, but these days, I doubt there are many people who would rally the Government to change the law back to 'choose for yourself'. One day in the future, people may look back at the divorce process of our current times and marvel at how many initially amicable divorces crumbled into a fight in court, and be amazed to learn that the safety belt of Arbitration was there waiting in the wings to be used, if only the clients had fully understood it's benefits.
Can family arbitration save clients money?
It is fair to point out that compared to getting the court forms for a divorce and going the DIY route with no complex financial issues to resolve and no disagreement, obviously Arbitration will add cost on top if you need some help in resolving a dispute and choose not to use mediation or the collaborative law process.
"In many cases, it will be more expensive to arbitrate, because the parties will be paying the fees of the arbitrator whereas going to court involves no direct cost once the application fee is met. Of course, you're right to say that arbitration is quicker which normally involves less expense (time is money), but I'm not sure I'd say it's always the cheaper option." Alexander Chandler, Barrister & Arbitrator Chambers of Deborah Eaton QC and Philip Marshall QC
Alexander is making a fair point about the cost of court being less than the cost of Arbitration if you only count in the court fees. But how many people do we know who have needed to go to court where there were not also solicitors, barristers and other associated fees turning the divorce drama into a financial crisis in it's own right?
From what I can see, family Arbitration provides an excellent alternative to going to court - cheaper, quicker and possibly fairer, bearing in mind how some family court judges have far less training and expertise in family law than a qualified Family Arbitrator does.
"This is a quicker process as you are dealing directly with the Arbitrator and therefore decisions relating to the procedure can often be made by email or telephone in contrast to everyone pitching up at court with the consequent cost. Parties can limit what is required for a final decision e.g. capital is agreed but level of maintenance is what is in dispute. Again this limits costs." Peter Jones, Jones Myers LLP
Time is money, and Arbitration can save a great deal of time - especially compared to going to court. Arbitrators can be accessed for as little as £500 depending on which Arbitrator you choose and the required specialised experience, which is a lot less than what you will pay for barristers and court time - especially if the dispute is a complex financial issue.
"The Arbitrations I have done and most of the enquiries so far have been low to middle income cases where the costs of court are simply prohibitive. I can often deal with the cases on written submissions only which limits potential costs to as little as £500 plus vat per person if it is a straightforward case. Very affordable for most people given the cost of court fees and the increased costs for clients in having their solicitors deal with a court case which could take up to a year to conclude.
The process is flexible and allows for disclosure to be provided in an efficient manner which suits the issues to be resolved rather than the "one size fits all" method which the court uses. This clearly has an immediate costs saving for all concerned. Solicitors retain their involvement throughout and they have clients who are content because they have achieved an outcome, even if it is not the outcome they wanted, without the costs and unpleasantness of the court." Clare (Sibson) Thornton, Thornton Jones Family Law
It's not just the money in the divorcees pockets that could be saved using arbitration, but also the State has much to gain financially as well in reducing the time litigants spend in court by finding quicker, cheaper solutions.
"There are many advantages to Arbitration and the very reason I trained in 2012 was because I saw its potential to be a breakthrough for those struggling with the ever depleting resources of the family courts along with their own depleting resources of funding a case to a final hearing to achieve a decision. By comparison, Arbitration is quick, cheap, private and confidential and the person making the decision is an experienced family practitioner who has been through a very difficult assessment process to be admitted as an Arbitrator." Olive McCarthy, Breeze & Wyles
Is Arbitration legally binding? Does it have any teeth?
Well I asked this question of Arbitrators who are, let's face it, lawyers - so not surprisingly, I got both the 'technically correct' answers as well as the 'in real life' answers:
"While I agree with the point that an arbitrator can resolve any outstanding points that might arise in a mediation, it isn't correct to say that an arbitrator's decision is legally binding. Under English law it is still necessary to get the approval of the court on any arbitrator's decision ("Award"). There's a recent case that basically says that the court will almost invariably approve an arbitrator's award (S v S Arbitral Award 2014 http://www.familylawweek.co.uk/site.aspx?i=ed126784) - but unlike commercial arbitrations where the decision will be binding, in family law cases, there always needs to be a final step - getting the court's approval, before an order is final and enforceable." Alexander Chandler, Chambers of Deborah Eaton QC and Philip Marshall QC
"Strictly speaking, you still need a court order approving the result of the arbitration before it is "legally binding" - in the sense of enforceable as an order, although the parties do "sign up to be bound"..... arbitration now has Presidential approval. It will be a highly unusual case in which court approval is not forthcoming!" Christopher Pocock QC, Barrister at 1kbw Chambers
"At the moment there are issues over enforceability in that if one party resiles from the process enforcement can be tricky but this issue is being addressed and unless the award is wrong at law it ought to be vindicated. The advantage of the process is that its much quicker and more flexible in that it is designed to accommodate the parties' needs in terms of venue times for hearings and the like - and its flexibility allows them to seek adjudication over one issue that might be the only one preventing an overall agreement." Jon Toogood, Withy King
So it is clear that a decision by an Arbitrator can be easily turned into a court order and made binding in law, so as far as the divorcing couple are concerned, they are entering into a process where they need to accept the outcome in advance, whatever it may be. Otherwise they make a mockery of the process and lose all the benefits of saving time, money and potentially drawing their children into a war zone. But it is the finality of the decision that makes it so very powerful as a way of helping a couple to let go of the divorce and bring that part of their lives to a close.
And because it is a final decision that they have both signed up for - not one hoisted on them by a judge - they are more likely to accept it. One of the issues with combative court divorces is the number of times litigants continue the fight with new battles over the ensuing years as the war rages on.
"Arbitration, as a process, is guaranteed to get an outcome. The Award (decision) of the Arbitratoris binding on the couple in almost all circumstances. It remains open to the couple to reach an agreement between themselves if they can, but if they cannot, they will receive a reasoned decision from the Arbitrator in a format which can quickly be converted into a court order within their divorce. My experience - both acting as an Arbitrator and for a client within arbitration - is that it is a more civilised and less polarising process which does quickly lead the parties to an outcome which enables them to move on with their lives". Oliver Gravell, Owner Birketts LLP
Why is the legal solidity of Arbitration so important?
In the emotional chaos of divorce, knowing that an issue can be resolved cleanly by an expert whom both the couple trust, and that the decision will stick legally so there will be no need to be dragged into court at a later date, this is a key benefit of Arbitration.
"When a couple, as it usually is agrees to use Arbitration, they are taking control of their lives and their future which is something that in my experience, couples feel they have no control over when solicitors and the Court becomes involved.
As the Arbitration process is private and hearings if indeed they are necessary (some matters can be settled on representations by the parties or their advisers on paperwork) can take place at the venue of the couples' choice. The award (Arbitrator's decision) once made by the Arbitrator is final and binding on the parties unlike Mediation and negotiations between solicitors. The parties will generally apply to the Court for an Order confirming the award." Olive McCarthy, Breeze & Wyles
Whatever the legal process involved in making an Arbitrator's decision stick in law, the reality is that couples can feel confident that the decision they are paying for is going to lead to an answer, and so peace of mind, and the opportunity to keep the mediation process going or to round off the process as a whole and bring it to a close.
It is the control the couple have that is significant. On the divorce journey they choose the Arbitrator together; they decide on what points they want a decision made and they set the time scales along with the Arbitrator. In trying to avoid crashing into a bitter protracted divorce if their mediation should founder, they can gain a sense of security by having another tool in the divorce toolbox at their disposal.
"The decision of the couple to choose their arbitrator and to enter into the process will generate a binding decision. When a couple appoint an arbitrator they can define many of the issues that they ask the arbitrator to determine and so are able to retain and build upon the work done up to that point." James Pirrie, FLIP
'Clunk Click' every divorce trip
I don't expect to have a car accident when I get behind the wheel, but I do bother to have a safety belt working properly in my car. You don't need a seat belt when the car is stationary, but when on the move, strap up. If your divorce is heading towards a disagreement that could dissolve your mediation process and lead to an emotional and financial crash into court, then why not bring in an Arbitrator and let the journey continue in safety?
The couple can still derail the process and let things get nasty, but if they have taken the trouble to belt up and pay attention to the road ahead, gathering the information about the routes through divorce that they have available to them, chances are they will make better choices about the direction they are headed and the people they bring in to guide them.
In the final article in this series, I will look at whether Arbitration is going to be widely used, or is it just a passing fad?
For more information regarding Family Arbitration, refer to the IFLA website: http://ifla.org.uk/.