Tipping point on ADR

I am not normally given to prophecy when it comes to family law, but on arbitration I could be persuaded to predict that we have reached a tipping point.

There have now been 50 family law arbitrations. Of course, naysayers will suggest that this is a modest figure, but any new method of alternative dispute resolution (ADR) takes time to bed in. In fact, according to Resolution, a partner of the Institute of Family Arbitrators (IFLA), the number has doubled since S v S [2014] EWHC 7 (Fam) last year. This judgment by the president of the Family Division gave the strongest possible endorsement of the IFLA scheme.

Arbitration has many advantages over court, including speed, flexibility and confidentiality. While media representatives can attend family court proceedings they are barred from arbitration hearings, so the entire process is wholly confidential.

Parties can pick their arbitrator, and how the arbitration proceeds and when. There is no court-imposed timetable, so parties avoid any delays. There is even potential flexibility about the procedure and the scope of the arbitration itself.

Following the launch of family law arbitration more than three years ago, media coverage suggested it would be the province of the very wealthy, those who could afford to pay privately for an arbitrator and oligarchs shy of press coverage. Not so. A number of individual arbitrators have offered modest fixed fees. Most recently, Hodge Jones & Allen has gone public with its own fixed-fee offering aimed at middle-income families.

There are plenty of other drivers that will make arbitration the obvious choice, notably significant delays in the family court. One can wait months for a hearing date in a divorce financial application, meaning that litigating parties cannot get early closure. The Ministry of Justice might say that more litigants in person does not lead to delays. Nevertheless, the Public Accounts Committee’s recent report, Implementing reforms to civil legal aid, was stark, highlighting a 30% rise in the number of cases starting in family courts where parties represented themselves.

Awareness is growing, both among practitioners and the judiciary. Mr Justice Mostyn has stressed that privacy can be guaranteed in this ‘much-to-be-welcomed scheme’. A number of leading cases have mentioned it, including the Supreme Court in Wyatt v Vince.

Last month retired High Court judge and family law arbitrator Sir Hugh Bennett addressed district judges on the topic of family law arbitration.

No family law solicitor should be ignorant of the mechanics of arbitration. The Law Society’s Family Law Protocol requires us to consider with clients all forms of dispute resolution, including family law arbitration. How many of us do so?

Currently, the scheme covers financial disputes including those arising from divorce, civil partnership dissolution and cohabitation breakdown, but also certain maintenance and variation matters. It extends to claims on inheritance from, for example, a child or a spouse. Its flexibility means that in appropriate cases, subject to the agreement of the parties and the arbitrator, the arbitration can be dealt with on paper. Disputes are resolved exclusively by applying the laws of England and Wales, in the same way as the family courts.

There is support to extend arbitration to non-financial children matters. This is currently being considered by IFLA.

Family law arbitration, private though it may be, can have significant costs advantages. Cutting the time taken to bring resolution to otherwise protracted financial litigation, which can last well over a year in the family courts, means families can move forward with their lives more quickly and cheaply.

In a few years, when clients are asking if we can refer them to arbitration, we may look back and realise that it was now that the scheme really gained momentum. Are you ready and sufficiently well-informed to advise your clients about family law arbitration?

Tony Roe is a solicitor and family law arbitrator at Tony Roe Solicitors, Reading