Do We Have The Family Arbitration Scheme We Need?

The Law Commission has published its final report which sets out the proposal for reform of the Arbitration Act 1996. In this blog FLiP Director James Pirrie examines the report.

A consultation on the reform of our arbitration scheme has just closed.  There are significant technical changes being proposed.  However for the arbitration matters that we are managing day-in, day out, it is likely to feel very much business as usual and these reforms are really addressing only the outlier challenges that the arbitration process may encounter.

Though the Arbitration Act passed into law in 1996, it became operational for family law matters only in 2012 (finance) and 2016 (for children issues, being extended to some temporary and permanent relocation cases in 2020).

That there is no root and branch reform is really a reflection of the strength of the original Act, which still seems a visionary piece of legislation.  It established the principles that:

• Individuals should have the right to agree that an appointed expert be given the power to make binding decisions about their situation; and
• That scheme should operate with the overarching objective of resolving disputes fairly by an impartial tribunal and without unnecessary delay or expense.

What is not to like!  A view that was really taken in a case conducted by FLiP back in 2014, when the then President of the Family Division observed: “Although recognising that the judge is not a rubber stamp, the combination of (a) the fact that the parties have agreed to be bound by the arbitral award, (b) the fact of the arbitral award (which the judge will of course be able to study) and (c) the fact that the parties are putting the matter before the court by consent, means that it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order. With a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case.”

And yet it still feels as though those needing answers to financial or parenting questions are staying away from arbitration in droves.  There have been less than 650 arbitration cases to date, with only 571 finance related cases and only 76 children arbitrations, despite the fact that objectively, the benefits of arbitration should be compelling.  Above all are:

• The speed of the process and that the steps are tailored to only what is needed.  It can be finished in 2 or 3 months when financial cases will take 15 months or more to reach conclusion in the courts and parenting matters will often take a year to finalise.  (On one occasion FLiP completed an urgent arbitration in 52 hours from the parties agreeing to use arbitration to the delivery of the award, during which time a wishes and feelings process was also completed with the child).
• The benefits of being able to select someone with particular skills and knowing that they will have conduct of the case right to the end, rather than seeing it passed between a number of different judges as is the norm as cases progress at court, and in consequence (and for some more important of all):
• The likelihood of very high quality decisions, in a short space of time inevitably generates costs savings.

When what is at stake is the clarification of living arrangements for children who must otherwise live with an extended period of uncertainty, the upsides are beyond doubt.  Now that there is increasing recognition of the way that courts are burdened by the demands placed upon them and the way that this means that cases are often dealt with by lay-magistrates or must wait such substantial times to be resolved, one can hope that there will also be increasing enthusiasm for the model.  And with that is bound to follow increased proficiency in the way that professionals make use of arbitrators.  At FLiP we have done rather more than a twentieth of all of the family arbitrations ever carried out in this jurisdiction and we are still finding new opportunities for our clients to help find closure using it.  Do speak to your solicitor here at FLiP if you think that arbitration may be of use for your situation or make contact if you want information about appointing one of the FLiP arbitrators to help move things forward.

Arbitration offers a way to achieve a tailored solution delivered expertly and swiftly. Our experienced team of arbitrators will guide you through the process providing first class expertise combined with care and understanding.

The lawyers at FLiP have considerable experience of arbitration whether acting as arbitrators themselves, or in supporting clients to bring their case before an arbitrator.

James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost effective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. James is a qualified arbitrator for both financial and children matters. To find out how James can help you in your family law matters, contact James below.