The Necessity of Arbitration 

Published on 11 December, 2017 | Andrew Newbury

We’ve all heard of whirlwind romances, those relationships which proceed from courtship to wedding vows with breath-taking speed.

Divorces, though, don’t follow the same, swift pattern.

In fact, if we discount the kind of protracted domestic disputes which occasionally feature on the pages of our national newspapers, divorces take about 18 months to conclude, depending on the complexities of their family finances and whether they have any children.

It is also true, however, that the administration of the process can impact greatly on how long it takes. By that, I don’t mean the attitudes of the spouses involved or the lawyers who they retain.

The closure of a significant number of courts across England and Wales has resulted in congestion, as fewer courts – just two in Greater Manchester, for example – deal with roughly the same number of divorces.

That strain has been exacerbated by the withdrawal of Legal Aid for most divorces and the resultant rise in former spouses choosing to represent themselves instead of using family lawyers.

To try and improve the situation, the Government has invested a lot of effort and money in alternatives; principally, mediation.

Even so, whilst mediation provides for a less formal setting than a courtroom, it doesn’t necessarily promise a more rapid settlement because it is dependent upon a couple agreeing.

As a result, myself and my colleagues at Hall Brown Family Law have seen an increase in couples opting for what is known as family arbitration.

It has been described as amounting to a ‘BUPA-style’ divorce, in that it allows couples to pay in order to speed up their divorces in much the same way as they might choose private health care.

Furthermore, despite the desire of judges and ministers to demonstrate transparency in the courts by opening them up to the media, there are still sensitivities about coverage, particularly among those couples who want to avoid their affairs appearing on the pages of national newspapers.

Arbitration, on the other hand, is private and allows for the selection of arbitrators who have experience in dealing with the very precise issues which can lie at the heart of cases.

Unlike mediation, it also leads to a final and binding award – something which Sir James Munby, the President of the Family Division of the High Court, has said judges would be expected to approve the arbitration agreements in all but “the rarest of cases”.

As I’ve been telling The Times’ Legal Editor, Frances Gibb, his support is evidence of how arbitration has been gaining favour with senior figures in the judiciary in recent times.

Nevertheless, such a development is not without its consequences.

The evolution of family law relies on court rulings. If more divorces are decided by arbitration, there is the potential that the law as it applies to those who cannot afford to pay the fees required lagging behind those who can.


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