Child arbitration: an alternative to the courts

Family Law|September 15th 2016

I have spoken approvingly about family arbitration on this blog many times before. Of course I’m biased being an arbitrator myself, but as all readers know this Yorkshirewoman is unafraid to give a blunt opinion, good or bad. My opinion of family arbitration has only been strengthened since the recent introduction of child arbitration. Let me explain why.

As a practitioner in the profession for let’s imaginatively say “quite a few years” I firmly believe that delivering peace of mind, as opposed to the actual result, is the best possible outcome for a client in a case.

The stress and distress of a court case is huge and can never be overestimated. The outcome is one that you can accept but the relief of actually knowing that it is finally all over, and you can start to begin living again and put it all behind you is invaluable going forward.

But it shouldn’t be like that. The process should be less pressurised, less stressful, less adversarial and less lengthy.

There are many people who cannot cope with the process or afford it. Meanwhile others simply avoid it altogether, preferring to pay an unfair price to do so. Sometimes people choose to settle because they can’t handle the pressure and, of course, the ever increasing costs. Some people decide they have no option when all efforts to settle result in failure. So they keep on and suffer more sleepless nights, more stress and increasing costs as the case rolls on towards a final hearing which can be months away and, in some courts, can even be more than a year away.

This pressure on the people who are litigating and the pressure on the courts in part led to the establishment of a family arbitration system alongside private family dispute resolution hearings. The latter is common in Central London, involving wealthier people who want the luxury of an experienced part-time or retired Judge or an eminent QC to help them resolve their dispute. If it fails, the case it goes either to court or to arbitration.

Arbitration for financial disputes in family law began in February 2012. I was one of the first tranche of qualified arbitrators, and have often waxed lyrical about all its benefits.

The process need not follow that of the court, there does not even need to be a hearing as it can all be decided on paper submissions. The whole process can be shortened and reduced down to something manageable stress-wise by both parties. Usually there will be a private hearing before an agreed arbitrator at a time, date and place convenient to the parties, with or without lawyers. Then the process and outcome will be decided so it can be cost effective, fast and completely private. The outcome resulting in an arbitral award will be upheld by the court and will therefore be enforceable.

The arbitrator’s fees can be agreed in advance with the parties and, at the end of the case, the entire costs incurred can be left for decision as to who pays by the arbitrator, unlike in court where the usual order is no costs against the other side.

For parties who don’t want the pressure and length of the court process but who can’t agree on an outcome between themselves, this process is surely a no brainer. It is surely worth the additional (and in most cases fixed) costs of an arbitration to get it resolved in a private, personal manner so quickly?

There are many qualified arbitrators all over the country, so there will certainly be one for most pockets and in most places.

The best news about arbitration though is that it has now been extended to most children disputes (although as in financial cases, injunctions and also enforcement is left to the court once the award has been converted into an order) and knowing how fast it is, it can only be fantastic for all parties involved.

This week, I came across an example of the effectiveness of child arbitration. I read in a legal periodical about a case that began in March and was originally scheduled for a final hearing in October. However, the parties involved were referred to arbitration and the dispute was fully resolved within TEN DAYS.

Peace of mind. Peace of mind. There is a price to pay for peace of mind my wise, much missed father used to say. How right he was.

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