Does this ring a bell? You sit opposite a client whose face gradually lengthens, whose mouth drops and whose eyes widen in dismay and disbelief as you describe how long it takes to bring matrimonial financial issues to a conclusion through the court litigation process.
You have advised of the other ways there are to resolve their case, but no matter how enthusiastically you describe mediation their response is negative and they comment: my ex-husband/wife will only listen to a judge. You encouragingly mention the collaborative procedure and that sadly too is dismissed.
The case itself does not contain a great value in terms of the assets and capital, far more high street than high net worth but the parties are at loggerheads on all aspects of their marriage and its financial aftermath. The one thing that your client does not want is for the matter to go on for what appears an interminable period with the prospect of expensive, lengthy and stressful court appearances, most likely before different judges on each occasion. What do you offer?
In a recent case I was acting for a client in such a situation and I suggested arbitration. After explaining what arbitration meant and how the financial issues between the parties could be dealt with more speedily and with less formality than through the courts, and with a final and binding arbitrator's award as the outcome, the client agreed that I should propose arbitration to the other side's solicitors.
Fortunately the parties agreed and the arbitration process kicked into action.
We agreed between us on two arbitrators we would both be happy to engage, the Institute of Family Law Arbitrators (IFLA) Form ARB1 was completed setting out the basic issues and then submitted to the IFLA, and within days one of our nominated arbitrators confirmed his agreement to be appointed and an initial meeting was arranged. Everybody agreed the date and time of the initial pre-commitment meeting and location.
The first benefit had already occurred. Up to this point the parties had not been able to agree on anything, and yet here they were agreeing to come outside the obvious 'box' and resolve their financial matters through arbitration.
The proposal to arbitrate led immediately to arbitration's second benefit, the immediate rapport between myself and my opposite number when it came to completing the IFLA Form ARB1 and setting out the issues that we both considered the arbitrator should deal with. This led to the third benefit which was that at the initial meeting with the arbitrator there had already been good communication between solicitors, and the atmosphere was therefore friendly.
At that initial pre-commitment hearing the arbitrator explained to both parties and to the solicitors present what arbitration was all about and how he suggested they should proceed, and explained the IFLA Scheme Rules by which the process would be governed. Most importantly he reiterated what we solicitors had already told our clients: that once they agreed to arbitration and the process was under way, a central part of their agreement was to be bound by the arbitrator's decision which would be final and binding upon them.
This initial hearing was extremely important as during its course the parties, who had hardly spoken to each other for quite some time, were now at least engaging in making points jointly to the arbitrator, and it was clear that a rapport and a clear connection was building up between them and the arbitrator, as well as between the solicitors and the arbitrator. For the first time the parties were able to look straight at the decision-maker and hear him talk to them as they in turn were able to talk to him. Towards the conclusion of the initial hearing the arbitrator left the room to let us talk to our clients and for them to decide whether they were happy to agree to confirm their wish to appoint him as arbitrator, or whether either of them wanted time to reflect before deciding. In fact the atmosphere was such that they agreed to confirm the appointment there and then.
These formalities concluded, the preliminary hearing at which fundamentals would be discussed (similar perhaps to a first directions appointment (FDA)), was the next step. The practicalities as to where and when the preliminary hearing should take place were swiftly agreed, and what should be done meanwhile. In fact a date convenient to all was selected, just two weeks later. Also within that time frame checklists were to be completed and documents exchanged.
The preliminary hearing enabled a full discussion on the issues that had been listed in the Form ARB1 enabling all parties including the arbitrator to play a full part in prioritising what each of the parties was seeking and what was really important to each of them. Very soon it became clear which matters were likely to take up a great deal of time at the arbitration 'final' hearing which was then envisaged, and those which perhaps might be settled even prior to that hearing. This was a very powerful meeting with the confidence of the clients becoming more obvious, enhanced by the very fact of the continuity of the same arbitrator.
Judicial continuity is something we rarely get in court: here was a chance to see how very important it is and what immense assistance and confidence it gives the clients.
At the preliminary hearing's conclusion directions were given to prepare for the final hearing (including, again, agreeing a date, time and location to suit everyone). The solicitors were asked to provide written submissions by a specific date, which proved a very beneficial exercise. With submissions exchanged I raised with the arbitrator whether he would be agreeable to a variation of his directions allowing the parties by a specific date to file counter arguments. The arbitrator readily agreed enabling everything to be ready for the final hearing. This was yet another benefit of the continuity of the arbitrator as the decision-maker throughout.
The approach adopted and the atmosphere of confidence generated by the arbitrator encouraged a recognition by us all that, rather than the clients incurring the additional expense of a full oral hearing, with cross-examination, the arbitrator should be asked to arrive at his award as a paper exercise. By this stage he had the relevant documents, arguments and counter-arguments before him. The relief to the clients was palpable, the pressure and tensions lifted from them, and now all that they wanted was to have the decision as soon as possible. Their wish was granted when the detailed award was received which enabled the clients to get on with their lives: and their respective solicitors to archive their files.
This arbitration from start to finish (final award) took four months. If, on the same day as we filed the Form ARB1 with the IFLA to start the arbitration process, I or my opponent had filed with the court a Form A to kick-start proceedings for financial remedies we would in that same period of four months not even have reached first base, the FDA hearing date. I feel reasonably sure that had this particular matter been referred to the courts, it would have proceeded through the FDA to the financial dispute resolution, and who knows when a hearing date would be given for that.
I can honestly state that arbitration certainly reduced the anxiety and the misery for the clients, and disposing of their case so satisfactorily and swiftly leaves me better able to deal with the next matrimonial client who comes through my door. ‘Have you heard about the arbitration scheme?,’ I shall ask them... .
Dennis Sheridan is a senior partner at D R Sheridan LLP, and a family law arbitrator