Arbitration has been available as a means of resolving family law issues out of court since 2012 for financial issues, and since 2016 for issues between parents concerning arrangements for their children.
The arbitration process essentially involves the parties appointing a trained arbitrator to decide the matter for them, and agreeing to be bound by the arbitrator’s decision.
Arbitration is an excellent way of resolving family law issues, but what exactly are its advantages and disadvantages, compared to resolving the matter via contested court proceedings?
Arbitration has a number of advantages over court proceedings, including the following:
Court proceedings are obviously controlled by the judge, including all aspects of how the case is conducted. Arbitration, however, puts the parties in control. For example, the parties can choose the timing and venue of an arbitration hearing, what issues are dealt with and when, and whether the process is conducted by document only, by telephone, or by face-to-face meetings. In short, the parties can tailor the arbitration to their particular needs and requirements.
Contested court proceedings can take a lot of time to be dealt with, particularly in these times when the courts are extremely busy. For example, cases between parents concerning arrangements for children are currently taking over 10 months on average to be dealt with by the courts. Arbitration should be very much quicker than that.
No one will want their private family affairs made public, but court proceedings are not necessarily private. Arbitration, on the other hand, is essentially confidential.
Contested court proceedings can be phenomenally expensive. There are costs involved in arbitration, including the arbitrator’s fee and possibly the cost of hiring the venue where the arbitration takes place. However, those costs will usually be far less than the cost of contested court proceedings.
Arbitration can be said to have some disadvantages, for example:
When you go to court you obviously can’t choose the judge that will deal with your case, but when you go to arbitration the parties do choose who the arbitrator will be. This could lead to issues, with one party wanting to choose an arbitrator who they believe will be more favourable to them, and the parties being unable to agree upon an arbitrator.
Arbitration doesn’t necessarily mean that the parties will avoid the court entirely. They may still need to go to court to get the arbitrator’s decision made into a court order, to ensure that it is enforceable. This is especially so if the arbitration related to a financial settlement on divorce. However, getting an order is likely to be a formality.
Sometimes in the course of resolving a family law matter an issue arises that requires the powers of a judge. Take, for example, the not uncommon situation in a financial case where one party has failed to make full disclosure of their means. The other party will want them to be forced to make full disclosure, but the arbitrator doesn’t have the power to require them to do so.
There is a fee for arbitration, and this is shared between the parties. This is an ‘upfront’ cost that the parties will have to find before the arbitration can take place. However, the cost of arbitration is still likely to be considerably less than the cost of contested court proceedings, as mentioned above.
Notwithstanding these matters, in most cases the advantages of arbitration considerably outweigh the disadvantages. Anyone with family law issues that can’t be sorted out by agreement should therefore give serious consideration to having the matter resolved via arbitration.
For further information, please see the Arbitration page. We also have a Divorce Support Club, to provide support whilst going through a divorce or a separation.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
Family law issues should of course be resolved by agreement, but sometimes that is simply not possible, and the issues will have to be resolved for the couple concerned. And that normally means going to court. But going to court can be extremely expensive and time consuming. It can also mean that the private issues involved are played out in front of the media.
There is, however, a better way – In this article we talk about the arbitration act 1996.
Arbitration is a form of dispute resolution whereby the parties agree to appoint a suitably qualified person (an “Arbitrator”) to adjudicate the dispute, and make an award (in financial cases) or a ‘determination’ (in children cases). The award or determination is made on the basis of the law and is legally binding. It will often be made into a court order, usually without the necessity of attending court.
Family arbitration is a relatively new way of resolving family issues, having only been available for financial cases (such as financial remedies on divorce) since 2012, and for cases concerning arrangements for children since 2016.
However, arbitration has been around for much longer than that, having been widely used in commercial disputes.
The procedural framework for arbitration is provided by the Arbitration Act 1996.
The Act seeks to draw an appropriate balance between allowing parties freedom to determine the procedure for resolution of their dispute, while at the same time maintaining adequate supervision by the courts. In particular, the provisions of the Act are designed to ensure that the arbitration is founded on genuine agreement, and that the procedure is fair and impartial.
The two arbitration schemes (for financial and children cases) are operated under the Institute of Family Law Arbitrators (‘IFLA’), a not for profit company.
In family proceedings the court can’t be prevented from deciding a case, even if both parties agree. However, there is no conflict between the role of the Family Court and the resolution of matters by IFLA arbitrations. Both the High Court and the Court of Appeal have supported arbitration awards incorporating them into court orders.
In a sense arbitration is like court proceedings, in that each party gives their evidence to someone, who then decides their case for them. But arbitration has a number of benefits over the court process, including the following:
Whilst the Arbitrator will charge a fee, the cost of an arbitration is still likely to be significantly less than contested court proceedings. (Note that each party can have their own lawyers advising and representing them through the arbitration process, so obviously the lawyers’ fees will have to be taken into account.)
Family Court proceedings are notoriously slow. The latest Family Court statistics, for example, showed that cases between parents regarding arrangements for their children are taking on average 47 weeks to reach a final order. Arbitration is likely to be much quicker than that.
It is possible that the media may be present at the hearing of a Family Court case. Most people will not want their private issues played out in front of the media, and may therefore choose arbitration, which is essentially private.
Obviously, court proceedings are controlled by the court, not the parties. In the arbitration process, however, the parties can liaise with the arbitrator and decide how the process should be conducted. For example, they could decide that the process should be document only, conducted via a remote platform, by telephone, or by face-to-face meetings.
Arbitration can be combined with other out of court family law solutions, to ensure that the matter does not have to involve contested court proceedings. For example, the parties may agree to mediate, and if the mediation is not successful then they can take the matter to arbitration (the mediation may well narrow the issues that the arbitrator has to decide).
For more details about arbitration and how it can help you resolve your family law issues, see our arbitration page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
I have been a Divorce Solicitor/Divorce Lawyer since I qualified as a solicitor in 1992.
In 2013 I founded my own practice. We now have offices in Exeter, Honiton, Taunton and Weston-Super-Mare. We also have consulting rooms in Bridgwater and Yeovil. We will shortly be opening a further office in Torquay.
When I founded Ian Walker Family Law and Mediation Solicitors it was just myself and a computer. In the space of a little over six years we have grown into a team of nine divorce lawyers/family solicitors. We are now one of the most experienced family law teams in Devon and Somerset.
The breakdown of a marriage is a sad and emotionally challenging time. Each of the couple will have entered the marriage with the best of intentions. Each will have hoped that the marriage would last. Sadly, too many marriages end in failure.
There are all sorts of reasons for this. Couples grow apart or find that over time they become incompatible. Sometimes one of the couple will become abusive. Sometimes the pressures of life are just too much, and each will pull in different directions.
It is often the case that one of the couple concludes that the marriage has broken down irretrievably before the other. They may have grieved the end of the relationship and made plans to move on before the other is aware. This can mean that when the difficulties come to a head that one of the couple is in a very different place emotionally to the other.
It is not unusual for one or both of the couple to have feelings of anger, betrayal, sadness, grief, depression at the breakdown of a marriage. One or both may well have anxieties about what the future will hold.
If the situation is difficult for the adults, it is often much worse for their children. At least the adults have some control over what happens next. Children are often caught in the middle between parents and have their own uncertainties and anxieties about what the future will hold and why mum and dad no longer get on.
Divorce has legal implications. Marriage is a legally binding contract. Ending the marriage involves obtaining a court order – the Decree Absolute. Achieving a clean break or other financial settlement also involves obtaining a court order. These court orders should be obtained.
Where child arrangements are concerned a court order can also be obtained to determine what the child arrangements should be. Such a court order will give certainty, but it is not the best outcome.
The best outcome for children and their parents is that the child arrangements should be agreed between their parents and that these should be reasonable and flexible and where both parents support the child’s relationship with the other parent and the parents work together and communicate well. This is often easier said than done.
When someone chooses a divorce lawyer – they want to achieve fairer outcomes and they do not want to make a difficult situation worse.
A good divorce lawyer should be able to assist their clients to make good choices and to help support them through a difficult time in their lives in a way which is as painless as possible – both emotionally and financially.
I would say that there are several things that you need to think about when looking for a good divorce lawyer.
Going to court over child arrangements or about financial arrangements can be very expensive and never helped anyone get on better with each other.
Most financial settlements are achieved through negotiation. The best arrangements for children are also achieved through negotiation. Therefore, you should look for a solicitor who is able to demonstrate their negotiation skills. Ways in which this can objectively be demonstrated are by the solicitor being qualified as a mediator or collaborative family lawyer or if they work within a team where good negotiation is clearly embedded in the firm’s DNA.
It is not good enough in this day and age simply to say that our default position is to make an application to the court and to negotiate – essentially at the door of the court.
In financial cases, negotiation cannot really start until financial disclosure has taken place – but there are choices about how the negotiation might be conducted. The skill of the lawyer is to assist their clients in finding the best process for them.
We are supportive of mediation. This involves referring the client to third party mediator (or one of our mediators acting neutrally for the couple) and providing legal advice in support of the mediation process. With mediation the couple will negotiate themselves – but are supported in doing so.
This is a good option but is not the right thing for everyone. Sometimes one of the couple will find the other overpowering and sometimes one or both of the couple will have difficulty saying yes to what is a reasonable final outcome (in part because they are in the habit of saying no to each other). Mediation works best where there is a confidence in each of the couple and they understand what they need and what the other needs and are prepared to make compromises.
Our team includes experienced mediators in both myself and my colleague David Howell Richardson. We encourage the use of mediation by the rest of our team.
A better process is in our view collaborative family law. This is an out-of-court process – because the couple make a commitment to negotiate solutions without going to court. The collaborative law process proceeds through a series of confidential meetings. The core participants are the couple and their collaboratively trained lawyers. Additional professionals such as accountants or financial planners or child consultants can be brought into the meetings and work with the couple parallel to the meetings in order to assist the problem-solving approach. We think that this is the best process. Both of the couple are supported by their solicitor and disagreements between professionals can be talked through so that the couple are better able to make pragmatic decisions.
Within our team, both myself and my colleague Fiona Griffin are collaborative family lawyers. I was one of the first to train as a collaborative lawyer in Devon and Somerset back in 2005.
Progressive practice means recognising that negotiations sometimes don’t get all the way to a final agreement. However, combining mediation or collaborative family law with arbitration is away to bridge any final gaps. Arbitration is another form of dispute resolution where a couple choose to instruct a private judge called an arbitrator to determine any outstanding issues in a way that is legally binding. This process fits well with mediation and collaborative family law.
Both mediation and collaborative family law are talking solutions. This is particularly important when there are children. The best outcome for children require parents to continue to talk to each other. Negotiating and agreeing solutions together should improve outcomes for a couple’s children.
Talking processes can be difficult at first – because of underlying emotions and a lack of trust, but the rewards of success should normally mean that these difficulties should be embraced and overcome (which is why in our view collaborative law is better – because the couple are better supported)
Experience is important – but is not the be all and end all. Practitioners can get into bad habits or become set in their ways. They may have been reluctant to embrace mediation or collaborative family law because they think that court-based solutions are the only solutions.
A younger solicitor with less year’s post qualification experience may be more committed to progressive practice than an older solicitor.
Nothing should be taken for granted. All I can say is that within my team I demand a commitment to progressive practice from everyone.
Family law solicitors are accredited by the Law Society and by resolution. Both have robust accreditation schemes. Having a panel membership is a way of demonstrating expertise and competence. These do not necessarily demonstrate a commitment to progressive practice – but they are a factor which should be taken into consideration.
Transparency about costs
The days are long gone when clients should not expect to have a straightforward conversation with their solicitor about costs.
In 2018 the Solicitors Regulation Authority introduced a requirement that solicitors provide some transparency over pricing. The requirements were limited and only applied to a small number of types of work/processes. It is often hard to find the required information on firm’s websites.
We have always been open about our charge rates. We have always published our base charge rates on our website. Few firms do this. We do not understand why there should be any mystery.
We also recognise that as well as transparency clients want pricing choices. We are very open to working to fixed fees and two other pricing options. Getting fixed fees right is important and this is not something that can really be done properly at an initial meeting. This is because until contact is made with the other party – and there is greater clarity over what needs to be done – and what process will be used to try and achieve an outcome – there are too many unknowns. What we can do is commit that as soon as the situation becomes clearer – we will offer a client a range of pricing choices from proceeding based on hourly rates as well as fixed fee choices.
We recognise that the world around us is evolving and the technology through which we deliver our service is better than it was five years ago and much better than it was 10 or 15 years ago.
We have recently adopted a client engagement tool which also sits on our website. This enables clients to provide us with a lot of information prior to their initial meeting with us. In the past the first half-hour of a meeting with a client would have involved asking lots of questions. This time can now be reduced – so that more time can be spent talking about the issues and options from the outset.
This is just one thing that we do. We do however recognise that some clients want to be able to undertake some tasks themselves – in order to keep costs down. We are very happy to have an open discussion with the client about who does what – when it comes to scoping out the work to be undertaken by us.
Another thing that we do is her that we subscribe to the best family law practice support service – which provides us with an extensive library and database and practice support tools which would have been unimaginable (and completely unaffordable) 15 years or so ago.
Whilst we are happy to share some of what we do in a post – there are other things which we will share with a potential client after they have made contact.
But the bottom line is that best practice for service delivery doesn’t stand still and good family law solicitors/good divorce lawyers will move with the times
Some firms invest heavily in public relations and enter the ever-increasing number of awards that are around. These awards are not necessarily judged by practitioners or relevant practitioners and certainly there are many firms that don’t enter or don’t have the time to enter.
As our practice has been growing, we have invested our time in other matters which we believe are more worthwhile – such as achieving the Law Society Lexcel Practice Management Accreditation. This is not an award based on a 1000 word also submission but where our practice is independently audited over two or more days to an extensive standard set by the law society. We would take the view that this is a better measure.
Ultimately you need to find someone that you can work with and have a rapport with.
To assist potential clients, know who we are – we have included on our website short video clips so that you have the chance to meet us on video before you meet us in person. We hope this How can I find a good divorce lawyer article has helped with your search.
If you have more questions about how to choose a good divorce solicitor you can see some common FAQ’s over on this page
If you would like to know more about us and to meet one of our team in person then please use the contact form below.
Error: Contact form not found.
How successful is family mediation?
It is impossible to know for Non-Legally Aided Mediation. There are no central and independently audited statistics.
There are statistics for Legally Aided Mediation though.
The outcomes of legally aided mediations are audited by the Legal Aid Agency. If success is over claimed, the Legal Aid Agency will disallow the success fee that is otherwise paid. If there was a pattern for this happening – then there would be sanctions under the terms of the Legal Aid Contract.
We can therefore say that the Legal Aid Agency statistics are reasonably reliable.
The latest round of statistics have recently been published
Here is a table:
Family mediation can be used to resolve issues to do with children or property and finance following divorce or separation, and the ‘all issues’ category describes mediations which deal with both areas.
The children category consistently accounts for the majority of starts, comprising 64% of all mediation starts in the last year (this information is taken from the more detailed data published alongside this bulletin).
Mediations can either break down or result in an agreement.
Like other areas of mediation, agreements fell following LASPO. They have since stabilised at just over half of pre-LASPO levels (see figure 16).
Mediations in the ‘all issues’ category can reach full agreement, where agreement is reached on all issues, or partial agreement, wherein an agreement has been reached on either children or property and finance, but not both. As such, successful agreements include both partial agreements and full agreements.
Over the last year 62% of all mediation outcomes involved successful agreements. The rate of success varied between different categories of mediation, with the highest proportion of agreements (63%) in the children category (this information is taken from the more detailed data published alongside this bulletin).
There is a lot less Legally Aided Mediation taking place than before the legal aid reforms which were supposed to promote mediation: 15000 ish down to around 8000 ish per year (the 2016-2017 were down so far from 2015-2016)
A greater proportion of mediation is about children issues and this is more successful than financial mediation
Success within these figures also includes partially successful. This is most likely to be where children issues have been resolved and financial issues have not.
If around 40% of mediation is unsuccessful – the failure rate for financial mediation will be higher – this is because success includes partial success. What this is most likely to mean is a failure to resolve financial issues but that there has been success in resolving child arrangements. As in my experience many couples tend to focus on one area of dispute, resolving children issues when finances are in dispute tends to be more straightforward.
40% failure rate means that nothing has been resolved at all.
The proportion of successful mediation is no better now than before the legal aid changes – why is this? 64% successful in 2006/7, 68% success in 2007/8, 66% success in 2012/13. Arguably the previous legal aid rules pulled even more contact cases into mediation.
There are more detailed statistics published
These charts are for the most recent full calendar year.
The overall success rate in finance only mediation is only 54%
When both finances and children issues are considered in mediation financial issues are resolved in only 51% of cases. Children issues are resolved in 60% of those cases.
Is a 54% -ish success rate for financial mediation acceptable? You can see why people are wary – particularly when money is tight – but Court is rarely the answer. We think that our combination of mediation with arbitration provides the best option.
If you want to see the legal aid data look here https://www.gov.uk/government/statistics/legal-aid-statistics-october-to-december-2016
No – remember overall 62% of cases were resolved. Resolution would have saved clients a lot of cost and should also have preserved or improved family relationships.
But – prospective clients need to be realistic – mediation is no magic wand.
For mediation to work, clients need to fully commit to the process and deliver on commitments made during the process. They must be prepared to have some give and take.
Perhaps also clients need to be more selective in their choice of mediator?
What are the mediators skills and background. Personally I always refer my clients to specific experienced mediators who are either practicing solicitors or who are non-practicing solicitors. But – I think my model of linking my mediation practice to a panel of arbitrators who are known to me is the way to go (although unfortunately legal aid is not available for arbitration – although if the matters still unresolved at the end of a mediation are reasonably narrow then a paper based arbitration can be inexpensive and certainly cheaper than the alternative)
I have been a Family Mediator since 1996 and am a supervisor of other mediators. I am accredited by the Family Mediation Council and the Law Society. I am also a Civil/Commercial Mediator and member of the Devon and Somerset Mediation Panel. I am a Family Law Arbitrator (Children Scheme) via IFLA and I am a practicing Solicitor with Accreditations via the Law Society and Resolution.
In other words I am quadruple qualified.
This means I am aware of the pros and cons of all relevant practice models and am well placed to comment.
I have been undertaking legally aided mediation for nearly 20 years. I have my own Solicitors practice based in Honiton but covering Taunton and Exeter. Our Mediation with Arbitration scheme is portable to anywhere within a reasonable travel distance…
But, all this means that I understand how the different styles of practice work – and don’t work – and perhaps also how they can best work together…