20 February 2014 - Article
18 months after inception, Family Arbitration is now firmly up and running in England and Wales. Suzanne Kingston MCIArb, who was instrumental in setting up the scheme and one of the trainers of the new team of Family Arbitrators, has seen an increase in enquiries about this innovative form of dispute resolution. Arbitration is an attractive alternative to court for many clients, be they high-profile individuals seeking a discrete and confidential forum in which to resolve private family issues, international, commercially-minded, clients familiar with the arbitration model or pragmatic private individuals who wish to secure the assistance of a highly trained and experienced adjudicator. There are now over 100 qualified family arbitrators in England and Wales. The qualification criteria is high – most candidates coming from the ranks of the High Court judiciary, QCs and senior solicitors.
Arbitration in family law can be used to resolve all financial and property issues, but perhaps it is the fact that it is quick and cost effective that makes it the most innovative and increasingly popular dispute resolution option within the family law arena. In a nutshell, arbitration can achieve an outcome for separating couples for a fraction of the cost and a fraction of the time that it would take to pursue court proceedings.
Family Arbitration is especially suited to certain categories of case. Firstly, whatever the level of assets owned by the separating couple, where the issues are not especially complex, arbitration can provide a swift enforceable resolution in as little as three months, compared with the alternative 12 – 18 month timescale frequently resulting from issuing proceedings at
court. Secondly, the flexibility of the family arbitration model means that it can be used at different stages – whether at the inception, during or nearing the conclusion of a case – in order to determine discrete issues (for example disputes relating to a variation of the level of spousal maintenance payable) or to resolve an impasse between the parties which is impeding a final outcome within court proceedings (for example the finalisation of the terms of consent order and shareholder's agreement).
The pressure on the Family Court to process cases is already immense and this is set to increase once the raft of procedural reforms come into play in April this year. Many clients will view Family Arbitration as a quicker and cheaper alternative to contentious court proceedings and the recent judicial commentary in favour of the family arbitration process in several reported High Court family cases has set the scene for arbitration to become the preferred legal route for many solicitors and their clients in 2014.
This case followed the approach in S v P (in which Suzanne Todd acted for the mother). S v S provides the strongest judicial support for the use of family arbitration seen to date and paves the way for this particular form of dispute resolution to take centre stage in relationship breakdown. From here on, in the absence of very compelling countervailing factors, arbitral awards will become ‘a single magnetic factor of determinative importance'. It will only be in the rarest of cases that it will be appropriate for family judges to do other than to approve the arbitral award, and, to quote Munby J, ‘with a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case'.
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