Arbitration is a means of resolving disputes outside court in which both parties agree to be legally bound by the decision of a jointly appointed expert arbitrator. In family law, separating spouses have been able to choose to arbitrate financial settlements since 2012, and the courts have endorsed and promoted this.
In July 2016 parents unable to resolve disputes relating to children also gained the option of choosing to arbitrate rather than apply to court. Disputes that can be arbitrated include such matters as which parent a child should live with, or the amount of time a child should spend with each parent, as well as more specific points such as how and where a child should be schooled.
It will be interesting to see how many couples opt to take advantage of the scheme and whether children arbitration gains the same endorsement and support of the courts as the original financial scheme.
There are certainly some significant attractions to arbitration over litigation:
- There is no need to attend a Mediation Information and Assessment Meeting (‘MIAM’) with a mediator at the outset
- It cuts out a lot of the strict (and expensive) requirements of the court rules and process
- There is no need to wait patiently for court dates to become available, because the parties and the arbitrator set the timetable
- The parties and the arbitrator can also set and streamline the issues to be addressed
- There is no risk of turning up at court to find that the case has been ‘bumped’ meaning there is far less time available than intended
- There is no prospect of coming before a lay magistrate or judge whose main expertise lies in another area
- Separating couples will be able to choose the date, time and venue of their arbitration, and tailor an agenda that adheres to the specific needs of their case
- They will be able to select their arbitrator, meaning that they can be reassured that they have the right person to make the right decision
- For more high profile couples, arbitration can guarantee complete confidentiality, with no potential media intrusion.
Of course, for a lot of parents a crucial question will be “What will it cost?” There are undeniably some additional costs involved when arbitrating - the arbitrator’s professional fee will be a significant expense (a judge does not send out an invoice!) and there may be associated costs such as venue hire. However, in many cases, the savings will outweigh those additional costs, and also bring other benefits. That is because the main purpose of arbitration is to design a timetable and method of decision-making that is more efficient, quicker and far less likely than the court process to sprawl out into several hearings over months or even years, during which disputes requiring legal advice (and fees) continue to be a financial and emotional drain on the parties and the children.
The launch of the Children Arbitration Scheme offers a valuable alternative to court for parents in dispute, and when speed, proficiency and privacy are as important as they are in children cases, there is every reason to envisage the scheme winning the support of parents and lawyers alike.