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Family Law Blog

Comment on divorce & family law 

Arbitration to help in divorce settlements?

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So what will be new in family law for 2012? What trend will be “in” for the year? It’s difficult to know really. After so much happened, comparatively speaking, in 2011, it is difficult to see there being any additional big moves for 2012. It is more likely to be a year of consolidation, as the management speak goes.

In 2011, we had the long-awaited Family Justice Review which arrived with an apologetic whimper, introducing the Mediation Information and Assessment Meetings (MIAMs) with very little consultation or guidance, making mediation the first step for couples seeking to separate in the hope that settlements can be reached without the need to “go to court”. The long-awaited Legal Services Act crashed onto the scene in October without the much anticipated flurry of high street big boys clamouring to sell legal services to every shopper. The jury is still out on that one and there is still a significant amount of head scratching going on.

Mediation is just one form of Alternative Dispute Resolution, or ADR, (collaborative divorce is another) and that really was the headline story for the year. The aim is to free up court time by encouraging people to settle without needing to go before a judge. It is an admirable sentiment but of course depends on the individuals concerned adopting a pragmatic approach, something not always possible in the heat of an emotional battle.

However, the approach is here to stay and I was interested to read recently the comments of Lord Wilson of Culworth, a justice of the Supreme Court, who appeared to suggest the next ADR step. At a reception hosted by the Collaborative Law Society, he suggested the introduction of arbitration into family law could be an additional step to resolve issues between estranged couples by an empowered and knowledgeable individual. They would be able to settle matters without a court hearing when mediation has failed to find a common ground. I think I like this idea. It would certainly help overcome the Achilles heel of mediation which I mentioned above, namely that if a couple don’t want to settle, no amount of mediation is going to help them settle. You can lead a horse to water…

It could have the added benefits of speeding up the process and, in some instances, keeping messy break-ups out of the public arena and settled behind closed doors. I imagine some celebrities may like this. How it would work in practice, I do not know. For instance, who would be the arbitrator (why not a family solicitor?) and how would their decisions be made binding – and what would be the appeal process if someone really felt aggrieved? On the face of it though, could be one to watch for 2012.

Andrew Woolley
Family solicitor

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