Lawyer Monthly - October 2022

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). 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, 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”. 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 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 scheme is swift, flexible, convenient and costeffective. What is not to like? 72 LAWYERMONTHLYOCTOBER 2022

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