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.
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