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It’s time to get serious about arbitration

It’s time to face the facts. The coalition government’s obsession with mediation has failed. It is now time to get serious about an alternative which has been overlooked for too long: arbitration.

The family courts are overcrowded. A huge number of people seeking a divorce, or the right to see their children have put a significant strain on the system. The government’s solution? Get more people to choose mediation.

In an attempt to prove its effectiveness, the government’s action on the issue has proved the opposite: mediation is not the answer.

Family disputes are often bitter, especially if children are concerned. People can become very stubborn, which can make reaching an agreement extremely difficult. In some cases, a spouse in a weaker position, perhaps a stay-at-home mother, may be intimidated into accepting a deal which is wholly unfair.

Plus, with the legal aid cuts, fewer people can afford to see a lawyer who could recommend mediation in the first place.

As a result, we have seen a 38 per cent drop in mediation since the legal aid cuts came into effect, and the problems of the overcrowded court system continue to worsen.

Instead of choosing mediation, people are trying their luck at representing themselves in court. On my blog there have been countless stories of people who have chosen to do this. Without legal aid, people cannot afford to pay a solicitor to face the court on their behalf, despite having no knowledge or experience in family law. This includes more than half of people attending children’s cases.

Mothers have been hit especially hard. Nearly 60 per cent of mothers in children’s cases are facing court battles alone. A few months ago, a mother with a learning disability did not have a lawyer present when she unsuccessfully fought to prevent her child from being adopted.

The system is broken. This seems obvious to anyone with an interest in family law and justice, yet the government continues to insist that mediation is the only answer.

It’s not just the government. Recently Jo Edwards, the newly appointed chair of family law organisation Resolution, suggested that legal aid should be reintroduced for a single meeting with a lawyer for people to discuss their best options.

These kinds of meetings already exist. They are called MIAMs (mediation information and assessment meetings) and are currently compulsory for any couple looking to obtain anything more than a straightforward divorce such as children or financial issues.

Government funding for MIAMs is not a new idea. One mediation provider proposed making MIAMs free last month. My reaction to both proposals is one simple question: Why not arbitration?

Unlike mediation, arbitration is not toothless. It is overseen by a solicitor, barrister or ex-judge who has been certified as an arbitrator. The biggest advantage it has over mediation is that the decision is enforceable by law. In this respect, it has the same power as a decision made in court but it does not require the same effort and expense.

Jo Edwards said that arbitration was only an option for the wealthy. Poorer people were stuck trying to get justice by going through the courts without help, she said.

However, considering she proposed reinstating legal aid for MIAMs, I ask again: why not arbitration? One charity has already claimed the government could afford to restore legal aid, so why not do so for arbitration?

In 2012, I was one of the first people in the UK to qualify as a family law arbitrator and I am now a member of the Institute of Family Law Arbitrators (IFLA)  and the Chartered Institute of Arbitrators (CIArb), so I know first-hand that it works.

Arbitration, if properly funded and promoted, would be a much more viable alternative to the clogged up family courts. Fewer people would try to navigate those difficult waters if they had a better alternative. Arbitration is that alternative.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Mediation Ireland says:

    Arbitration probably will not work in all cases, however I do agree that there should be an increase in the number of arbitration cases. Mediation does work for corporate disputes and for family law disputes.

  2. Alan Stevenson says:

    since when was mediation compulsary?
    I divorced in scotland and there the lawyers discourage mediation as it isnt in their interest.
    Causing conflict, using children and driving up legal expenses is the way it is done up there.
    Compulsary mediation and arbitration would be too costly for the lawyers and reduce their ability to manipulate the courts for maximum financial gain.

    • Marilyn Stowe says:

      Dear Alan
      It isnt. What is now compulsory is for a potential applicant to attend a MIAM before proceedings are issued, to consider if mediation is a viable option.

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