Arbitration is a worthy alternative to court (From Solicitors Journal)

Divorce|March 22nd 2012

From my latest Solicitors Journal column “Family Business”, 20/03/2012.

Family lawyers must embrace this fairer, more flexible and potentially cheaper option, says Marilyn Stowe.

Already employed successfully to resolve commercial disputes, I believe the process is attracting attention because it offers a real, workable alternative to court for divorcing couples.

We all know the pressure an already overburdened judiciary is working under and the delays in every court across the country. It’s not long since mediation was a much-touted solution to this problem. Indeed, in the government’s recent response to the Family Justice Review it once again renewed its commitment to the process by which trained mediators help couples to reach their own settlement through agreement.

The perceived lack of legal ‘teeth’ in mediation means it is seen as a weak option and most couples remain prepared to pursue their case through court, because they want a fair and objective outcome imposed upon them. Many lawyers, however, steeped in tradition and the court process, regard an alternative model with suspicion and seem to believe lengthy and costly litigation is the only viable option. In modern times, that cannot be right.

Wide-ranging powers

I believe arbitration provides an excellent alternative. Arbitrators have wide-ranging powers to make swift decisions on any case management or substantive issues upon which the parties involved can’t agree. This includes deciding what matters are included in the arbitration agreement, making interim awards on issues such as maintenance, the extent of disclosure or the need for written submissions, as well as the appointment of an expert or assessor. They can also make orders for costs.

Arbitration is more informal, fair, flexible, strictly private and potentially cheaper because it doesn’t need to follow the more lengthy process adopted by the courts dealing with similar matters. True the arbitrator will charge a fee (and each arbitrator will set their own rate), but that fee should be offset against the savings that can be made and the additional benefits gained. Arguments as to the enforceability of an arbitration award will no doubt crop up in time, as they do in commercial cases, and ultimately a court may have to resolve the dispute. But it is expected that these awards will routinely be upheld by the courts, and in some cases there will be no need for a court order at all.

I am among the first tranche of arbitrators selected, trained and qualified to conduct this work. All of us taking our places as members of the Chartered Institute of Arbitrators are experienced legal specialists capable of making a complex award – something we had to demonstrate in our training. Not everyone who undertakes training meets the requisite standard, and we currently count QCs and ex-High Court judges among our number. By contrast, mediators need not even be legally trained.

Duty of care

Family arbitration, its standards and operation overseen and regulated by the Family Arbitration Panel, IFLA and the CIArb, is a scheme created and pioneered by legal professionals. Now it is generally available across the country and requires the confidence and common sense of family lawyers to advise their clients as to its availability. Clients frustrated by the current court process may well agree to give it a go. Why shouldn’t they?

It would be a pity if they were hindered by family lawyers expressing reservations that I am confident will turn out to be misplaced.

All family lawyers owing a duty of care to their clients should in discussions about dispute resolution advise their clients of this option. If the clients of my firm – at varying financial levels – are anything to go by, then they will be ready to try it.

The only way we can test its suitability, and allow it to develop, is by giving it a go as a profession. We can no longer pretend that the legal landscape is not shifting.

And if we cannot come up with our own ideas and adapt, change may even be imposed upon us.

This article was first published by Solicitors Journal on 20 March 2012, and is reproduced by kind permission

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(8)

  1. DT says:

    Hopefully, the more progressive ‘early-adopters’ in the profession will lead the way and embrace this resource as an opportunity and not perceive it as a threat. This should get the ball rolling.

    With any luck, common sense will prevail and even the most hardcore traditionalists will recognise that this may well be in their clients’ best interests.

    Clients as well as lawyers need to embrace this option with an open mind.

    It has clear benefits over mediation and I’m sure any niggles can be ironed out once it’s been fully ‘road tested’.

    It’s got to be worth trying.

  2. hazel harris says:

    i am hoping to have the benefit of using this arbitration service in the near future if the other parties in the dispute agree i am doubtful they will but i can hope as i know what i may gain in going to court will be lost in solicitors fees i will post what my experience is in a fair way even if i lose as it may help others. for those who may not have read in the past what i have posted i am a long term cohabitee 23yrs +we both assumed i was next of kin and my dear partner has died intestate if anyone reading this is in the same position as i was please beware i would not wish anyone to go through this he was only young it can happen at any age so do something about it today greedy relatives who you never see when they are alive turn up. people don’t marry for many reasons and most i know are more close than a lot of people who own that piece of paper so if you love your partner see a solicitor and save them form what might happen hazel

  3. Steve says:

    Hi

    I fail to see how this will be potentially cheaper for a Client, the same preparation will require to be performed and then you have to pay an Arbitrator.

    It may quicken the process for some, but the cost will no doubt be more.

    Steve

  4. Marilyn Stowe says:

    Steve
    The process need not be the same. The way I see it, two unrepresented parties with relatively modest assets could agree to have an arbitration, circumvent most of the court required process such as two hearings out of three, and move to a resolution cheaper and faster, if they agree simply to split the fee between them.
    Compare and contrast say the cost to two parties of an ancillary relief process both with lawyers going through the courts.
    An arbitrator is experienced, won’t be flanneled but is not bound to go down the same route as a court room judge.
    It won’t be the same for everyone but there is real potential for many couples via arbitration.
    Best wishes
    Marilyn

  5. BobTB007 says:

    Hi all

    Marilyn, I too have similar fears to steve.

    Its a cost benefit decision that it comes down to, I believe and the odds are stacked against arbitration.

    Because of the “hidden rules” of the family law system, there is little or no incentive for a party (who is uncooperative or unscrupulous) who is the resident parent to agree to anything that they do not wish to agree to in mediation. Given the nature of conflict, why give up something when there is no down side if you do not move your position?

    Mediation flunks its test on this basis alone. Now I am not saying that mediation will fail in all cases but in the case of uncop or unscrup it will every time fail

    I am very much in agreement that arbitration could work but only in the hands of an expert and totally unbiased person, otherwise what will prevent an arbitrator with a hidden agenda from entering the system with malignant intent?

    Maybe I fear too much, but, the courts are rife with them at the moment and I would hate there to be another avenue for them to operate in.

    So the cost conundrum

    pay an arbitrator (when both persons are unrepresented and therefore can be said to be litigants in person?)

    or

    Pay £200 for a C100 be an LIP (same as above) and (over the course of several directions/final hearings) get a judge to “arbitrate” for that is what they are ultimately doing, (as the decision is one based upon discretion) and come up with a decision that is binding on both parties and with a warning notice attached to it?

    Put like that and I cant see arbitration is the one I would go for on a cost based basis

  6. Marilyn Stowe says:

    Bob
    The arbitration process only applies to finances and not disputes over contact/residence to children.
    Lets wait and see the take up. There are very obvious benefits for many people who may not wish to proceed through the court system.
    Regards
    Marilyn

  7. BobTB007 says:

    Thanks Marilyn

    That makes sense and I can see that would work, but how does one go about choosing an arbitrator. For instance, wife says let’s do this and I have a list and this one sounds good. Husband says well I like the sound of this one, do they draw lots or toss a coin?

    Will arbitration be used for the financial affairs of non married couples?

    Russ

  8. hazel harris says:

    i said i would report back on my endevours to have an arbitrator to sort out my co habitation problems as my partner of 24-26 years died intestate i tried to go down this road as gong to court will cost half of what his estate is worth my solicitor has advised me the other party involved are not cooperative also as they are so reluctant if we could manage to persuede them they will obviously reject the desition of the arbitrator and it will finish up costing me a lot more money this all sounds a very good way forward to have an arbitration service but i summise that many cases where this service will be a huge benifit one party will be uncooperative hazel

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