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Is arbitration finally gaining momentum?

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Yesterday, Parliament returned from its summer recess. With the government back in session, what is the likelihood that they will act to make arbitration in family law matters a more visible option for divorcing couples?

The removal of legal aid in the vast majority of divorce cases has left the potential divorcee with a trilemma – self-representation, mediation or arbitration.  Numbers of the former are still on the rise, with litigants-in-person taking their own cases to court for what is often, at best, a wild gamble.

Despite the government emphasising, subsidising and, in the case of “MIAMs”, enforcing mediation to combat the lack of legal aid, there has actually been a 38 per cent decrease in mediation, with divorce parties losing faith and patience with this light branch of justice.

Arbitration, arguably a middle-path between these two options, remains in the dark – and this in itself remains somewhat of a mystery.

For although arbitration is not particularly widespread, support for it very much is. I have spoken before about the need to get serious about arbitration, and I am not alone. Alexander Chandler, qualified arbitrator and district judge, remarks that “having the tribunal/arbitrator wait for the parties (as opposed at court to the other way around) is, I think, much to the parties’ advantage.”

Sir Peter Singer, former High Court Judge, laments, “If we could only get the public to engage with arbitration,” while Sir James Munby, President of the Family Division, praises the ability of arbitration to reduce the burdens of effort, expense and time on the court system.

Explaining arbitration itself is almost synonymous with citing its strengths.  Unlike mediation, arbitration is legally enforceable: this is due to the fact that the arbitrator is a legal professional (mediators do not even require legal training), and that both parties agree to be bound by the process and decision.  In this way arbitration has the advantage of a court trial – the guarantee of a clear end result – but it also has advantages over a trial.

Often it is more successful than litigants attempting to represent themselves. Arbitration allows privacy and the security of fixed up-front legal costs, both lacking in a potentially drawn-out trial.  The facts and the common legal consensus jointly indicate that arbitration is, in the general case, the best of both worlds over mediation and litigation-in-person.

Once again, therefore, one wonders: why is it so rare?  Perhaps, however, that question is finally becoming obsolete.  Although I am one of the first qualified arbitrators in the country, I recently conducted my first official arbitration.

We are also starting to see the emergence of private arbitration after a High Court Judge endorsed a privately arranged settlement, opening the market up to alternative “privatised” divorces.  This is a big step in the right direction – with the precedent that courts will respect the legal weight of both public and private arbitration, faith is restored in this “out-of-court” route to settlement.

And it needs to be.  Without legal aid, family law is a constantly changing and evolving system.  Mediation is simply not up to the task of dealing with the new status quo.  Its turbo-charged brother, arbitration, should be brought out of the shadows.  This blog has been shouting in its corner for years – maybe, at last, the legal world is just starting to listen.

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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