At the turn of the year, Lord Wilson of Culworth, a justice of the Supreme Court, talked about the possible emergence of arbitration as an additional route for resolving disputes, and I cautiously welcomed it in a blog. Well, things have moved on and a new scheme has been launched to enable families to turn to arbitration to help settle disputes and avoid having to go to court.
If mediation and/or collaboration fails to reach agreement, the newly formed Institute of Family Law Arbitrators (IFLA) can call on an experienced panel of family lawyers who have been specially trained to work as arbitrators. In setting up the scheme, the not-for-profit organisation has had the involvement from the Chartered Institute of Arbitrators (CIArb), the Family Law Bar Association, Resolution and the Centre for Child and Family Law Reform. This report suggests the training has already attracted retired judges, which is good news. In theory, experienced and sensible people to give a balanced view and suggest practical solutions. In theory.
The advantages of arbitration are fairly obvious for all to see. Since April last year, the Government has pushed couples down the mediation route to try and reach agreement on details of their divorce without going to court. If this works, great stuff – but often it doesn’t. If a couple don’t want to agree, mediation isn’t the best solution for them. Arbitration therefore gives an additional option either instead of this or after mediation has been exhausted. The difference with arbitration is that it involves an experienced family law practitioner who can give some fairly straight talking about what the agreement should be. The intention being that this will make both sides see sense.
The down side is the question over whether whatever is proposed by the arbitrator will carry any weight. As it is not enshrined in law, presumably either party can still simply refuse to accept the “ruling” and so it will still ultimately end up in court, making the process longer and more expensive than if they had just gone down that route in the first instance. That would make arbitration nothing more than a stern mediator: if you don’t sort things out with the mediator you’ll get sent straight to the arbitrator!
I don’t mean to mock because I do think this is a good idea. I just hope that the Government can look at backing this scheme by giving it some teeth in a way they have never been able to do so with pre-nuptial agreements.