The Family Arbitration Scheme – The Future of Family Justice?

In this article, family law and dispute resolution expert Julie Stather will examine the scheme, its success and why she believes it is the way of the future.

A Brief History of the Scheme

Arbitration in financial remedy proceedings on divorce has now been available for 10 years. The scheme was initially, as the late Sir Peter Singer wrote, for parties who “wish their financial dispute to be dealt with as swiftly, cheaply, privately and with as little acrimony as is possible” ([2012] Fam Law 1496). The remit was extended in 2016 to cover matters relating to the children of a relationship and all of the same benefits applied, but the rapid resolution of the matter was of course all the more beneficial to the welfare of the children.

How the Scheme Works

The scheme is very simple in its conception – the parties agree to use an arbitrator to determine the issues in their case; they either agree the identity of that arbitrator or leave it to random allocation, and the case is then dealt with, applying the law of England and Wales, and a binding decision is given. The beauty of the scheme is in its detail: the parties can agree to arbitrate at any time (before or during court proceedings), they can agree to limit the issues they want to be determined (whereas the court has jurisdiction to delve into any issues), and they agree a time and place for the arbitration to be carried out.

Arbitration can determine entire cases or discrete issues, court proceedings can be adjourned generally for an arbitration to take place and, once the arbitration is complete, the parties can apply to the court for an order in the same terms as the arbitrator’s decision. As stated in a judgement by Ms Clare Ambrose sitting as a Deputy High Court Judge, “It would be exceptional for a Court to refuse to approve a Consent Order…” (para 53, BC v BG [2019] EWFC 7). Arbitration can be used by separating couples whether they were married, cohabiting or indeed in another form of relationship, as well as by wider family members such as grandparents. It is swift, flexible, convenient and cost-effective. What is not to like?

The beauty of the scheme is in its detail (…)

Performance and Development of the Scheme

The performance of the scheme as whole can be evaluated in many different ways.

Firstly, it is now unusual to find a practitioner who is unaware of at least the existence of scheme, and seminars have been given up and down the country to solicitors, Cafcass, through Resolution, IFLA and various barristers’ chambers.

Secondly, the number of cases which have become finalised after an arbitration has continued to grow steadily, notwithstanding the lack of external (government) funding which was extended to the family mediation scheme.

Thirdly, the scheme has been effective in the remedy it provides for its users. Writing for Family Law Week in 2019, I stated that the fact the appeal cases are “vanishingly rare is a tribute both to the design of the arbitration scheme and its supporting Rules, and to the skill and judgment of the arbitrators who operate under its auspices” (‘Cementing the future of arbitration’, J Stather, Family Law Week, 8/2/19). The position as it was in 2019 with regard to appeals has not changed to date.

Fourthly and finally, the scheme has secured the enthusiastic endorsement of both the incumbent and previous Presidents of the Family Division. Sir James Munby (when he was President) published Practice Guidance in 2018, along with judgments which are generally supportive of the scheme. His article post-retirement – when perhaps he felt less constrained – was entitled ‘The crisis in private law in the English Family Court’ (Family Law [2020] Fam Law 448). In it, he suggested that arbitration and other forms of dispute resolution should be supported because “there are many cases which do not require the involvement of a Judge and where, to be blunt, exposure of the parties to the court process can sometimes only make matters worse”.

It is now unusual to find a practitioner who is unaware of at least the existence of scheme, and seminars have been given up and down the country to solicitors, Cafcass, through Resolution, IFLA and various barristers’ chambers.

The current President, Sir Andrew McFarlane, has also expressed his support; he was the headline speaker at the seminar ‘”Family Arbitration 2020” Past, Present and Future in the New Normal’, where he said: “It is a harder concept for those involved in children’s cases to think that arbitration might be suitable but that says more about the ignorance of those who think it might not fit rather than the true position which is, for the right case, arbitration is likely to be as effective if not more effective, and speedy, and sound a method of dispute resolution as any other.”

The development of the scheme speaks for itself. It has been required to expand and develop since its inception, that requirement being market-led. The initial expansion of the scheme was from financial cases to the majority of children’s cases, but in 2020 the scheme was further extended to include both temporary and permanent relocation both within and outside the jurisdiction, something which had been specifically excluded but in today’s global world was increasingly frequent. This was a very welcome development, as there are so many cases now where delays in the Family Court lead to a school placement or a job opportunity being lost.

Another indicator of market forces is that there are now hundreds of family arbitrators across the jurisdiction who deal with finance, children or both. They range from junior practitioners more notably keen to embrace non-court dispute resolution as it becomes more mainstream right through to retired High Court Judges. As a result, the wide range of fees has made the scheme accessible to large swathes of the population.

Why Should Clients Choose to Arbitrate Right Now?

The Family Court is under unprecedented pressure. Never before have so many guidance notes, practice directions and government initiatives been aimed at reducing the workload of the courts, but still the increase in workload is inexorable. McFarlane previously described the system as “running up a down escalator” – a phrase which was snatched up by the national press and has never been forgotten. The causes of the increase are well-known; obviously there is COVID-19, but also the effects of LASPO (the huge increase in litigants in person), the government’s court closure programme and the number of lawyers leaving the specialism – or, indeed, leaving the profession – have all added to the difficulties.

What are the effects on litigants in family law cases? Delay, uncertainty, cases being taken out of the list the night before the hearing having waited months for that court date, and all of this leading to increased stress and expense. The MOJ describes the lengthening of children’s proceedings as an upward trend (in 2020 they were taking an average of 31 weeks to resolve through the courts).

The development of the scheme speaks for itself.

Delay is detrimental right across the spectrum of family law cases. In cases regarding where children should live and how their time should be spent, delay is widely recognised as harmful for children. It is, however, also harmful to the adults involved in terms of time, money and emotional reserves. In finance cases, never has it been clearer than in this rapidly changing world that delay will make it increasingly difficult for litigants to plan their financial future as a single person.

Common to both financial and children’s cases are the various other difficulties caused by delay. The longer the proceedings last, the more entrenched litigants become in their positions, with the result that any decision imposed upon them by a third party is likely to be disappointing to them.

The other feature which is sadly common to both types of case is that the time between hearings is usually filled with a volley of solicitors’ letters, all of which cost money and raise the temperature. This is a very basic point and one which serves to highlight the considerable benefit of arbitration, which takes place swiftly and for a set price. The longer the case goes on, the more likely it is that litigious types will bring new issues to the court. This is a clear benefit of arbitration which is often overlooked – the parties to an arbitration must agree which issues are to be determined and the arbitrator cannot go beyond that remit (the parties having set out in their application form the issues in contention).

Finally, the benefits of arbitration for litigants in person (i.e. those who have chosen not to instruct a solicitor at all, or those who have received out-of-court advice only) are legion. Arbitrators are well used to dealing with litigants in person, the parties may find the arbitrator’s room less intimidating than a court room, and the fact that there will be no other case in the list will mean that the proceedings are not rushed on the day. It is also frequently said by veterans of the arbitration process that they felt they had more agency in the decision as they had chosen their arbitrator, rather than a Judge having been selected at random by the Courts Service.

The Remote Court

The world stopped, temporarily, for COVID-19. The Courts Service responded as it had to, by prioritising family cases where the safety of a child was at risk, and other types of family cases inevitably suffered further delay. Eventually, however, a new way of working was established – the technology was in place for hearings to be dealt with by video link and the pace of justice seemed to pick up a little.

As restrictions around the world relax, however, the Family Court is, inexplicably, reverting back to ‘in-person’ hearings for a large part of its workload and often in circumstances which have left practitioners dumbfounded. What this means for litigants is a return to travel and lack of predictability about how long they might actually be at court. This highlights another benefit of arbitration: the parties can determine how much of the case can be heard remotely – and in some cases it can be the entire of the case – and there is complete certainty about the start time of the hearing.

Conclusions

Family arbitration is a very effective tool for determining disputes. It has been road-tested and honed over the 10 years since its inception, and it continues to enjoy the support of the judiciary. The choice of arbitrator has increased manifold and the scheme now applies to the widest possible scope of family disputes. Appeals are very rare indeed, which lends weight to the suitability of the scheme, and it has now – finally – become a mainstream form of dispute resolution. As the delays in the court system continue at the same time as busy professionals return to work, a bespoke family dispute resolution service that works wholly for the parties has never been more necessary and more relevant.

 

Julie Stather, Barrister /Arbitrator

119 Church Street, Brighton, BN1 1UD

Tel: +44 01273 625625

Fax: +44 01273 698888

E: Julie.Stather@1cor.com

 

Julie Stather MCIArb has been practising in family law for over 20 years as a barrister. She has a wealth of experience in all aspects of family law including matters relating to children and to finances. Having seen the delays in the court system and the additional stress (both financial and emotional) which legal proceedings can cause, She has been a strong advocate of non-court dispute resolution for some years.

Julie previously headed her own companies offering both mediation and arbitration, and she now arbitrates exclusively out of 1 Crown Office Row, Brighton, which is a leading set ranked in the Legal 500. Julie is an Arbitrator in both children and financial disputes as well as providing advice and representation to clients for both court proceedings and non-court dispute resolution processes. She is a regular contributor to family law periodicals, the author of the Secure Accommodation handbook, and she trains other professionals on a variety of topics.