Often the biggest concern for parties’ who cannot reach agreement with their ex-spouse over how to split their assets is a long, expensive drawn out court process. The negative impact of a court process can have long lasting impact on the parties financially and emotionally and worse, upon the relationship with their children.
Recent developments mean that Arbitration provides a suitable alternative to the court process to resolve all manner of family disputes including, financial provision arising out of a divorce, breakdown of a Civil Partnership, financial provision for children of unmarried couples, disputes involving cohabiting couples over the division of property and also, more recently disputes over contact.
As Gareth Curtis, Associate at DWF and recently qualified Arbitrator says ‘The court process can often be highly unsatisfactory. The well-publicised cuts in public expenditure have put a huge strain on the court system. In the Greater Manchester area, a large number of courts have actually closed, meaning an inevitable backlog of cases transferred from outlying areas to Manchester. It is not unusual for cases to take over a year to go through the court process from start to finish. This is obviously a distressful prospect for clients.
The Government has encouraged the general public to mediate their dispute. There is now a duty to consider mediation before issuing a court application. However, as a recent Television programme ‘Mr and Mrs: Ring the Mediator’ illustrated, a Mediator can bring people together to discuss the issues between them but a Mediator cannot decide those issues. Often people are simply crying out for someone independent to decide the issues between them. The advent of Arbitration is a cost effective, efficient way of resolving disputes without the necessity of a long drawn out court process.’
Arbitration involves the parties agreeing to be bound by the decision of an Arbitrator. The parties choose the identity of the Arbitrator who will be an experienced family practitioner, usually a barrister, solicitor or ex Judge. Unlike the court system they are not left at the mercy of a Judge who they do not choose and cannot guarantee will either be an experienced family practitioner or have the read the case thoroughly before it is heard. Furthermore, the Arbitrator will decide the case from start to finish, so there is consistency.
The proceedings are confidential, unlike the court process, the family courts are now often heard in open court particularly for high profile litigants. For many clients the prospect of their disagreements, being aired in the media is not one they will relish.
The decision of an Arbitrator is final and binding on the parties (unless there are exceptional reasons such as would warrant an appeal); it is as enforceable as a decision by a Court. As the parties control the process, this has huge implications for the speed and efficiency with which the case is dealt with. As Gareth says ‘One of the issues clients have is the formality of the court process drives up the costs. For example, in financial remedy proceedings the parties are required to attend the first directions appointment in person with their lawyers. All sorts of paperwork is prepared for the Judge who often have little time to read the papers. In the Arbitration process the parties can choose their own process and this hearing can be dealt with over the telephone and at a fraction of the cost.
Arbitration is a fast growing area for the resolution of family disputes. For further information please contact Gareth CurtisThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.