Arbitration – the future is brighter for private law children disputes
By: Shiva Ancliffe, a barrister and child arbitrator in London
With the start of a new year the time is ripe for solicitors to rethink their approach to dispute resolution in children matters. Litigation is not always the right answer, it can be stressful, time consuming and expensive. Clients who choose arbitration generally report back favorably, the reduced formality, flexibility and speed of the process rate highly in their responses.
Arbitration has many advantages for parents that cannot reach agreement in respect of the children’s future. Disputes involving child arrangements, contact, shared care, division of holidays, internal relocation, school choices, name changes, can be ideally suited for arbitration.
There are however some areas of dispute that should not be arbitrated, for example where there is a need for fact-finding, or there are serious safeguarding issues in respect of children. Nor is it suitable where there has been domestic violence, drug and/or alcohol misuse and mental illness or allegations of coercion.
The vast majority of cases are therefore suitable for arbitration. It’s puzzling why arbitration is not the obvious choice in many cases. With the growing delay in court listing, the pressure on judges and the spiralling cost of litigation it is hard to understand why solicitors are not more readily choosing arbitration as the first and obvious choice of dispute resolution for their clients.
With the launch of the 2016 revised IFLA which extended to children disputes, the scheme is now well established and there are many qualified and experienced children’s arbitrators to choose from. The outgoing President of the Family Division, Sir James Munby, issued a practice guidance for the children scheme on the 26 July 2018.
The enormous advantages of arbitration cannot be overstated; here are a few of the key advantages;
Choose your arbitrator:
- The ability of the parties to jointly agree an arbitrator of their choice is an unrivalled advantage over the court process. Parties are able to review the experience and skill set of the person that will make the decision in their case.
- Arbitration offers continuity of tribunal in a way that the court process simply cannot guarantee.
- If parties are unable to agree on an arbitrator they can invite IFLA to appoint an arbitrator on their behalf.
Determining the issues to be arbitrated:
- It is up to the parties to determine the scope of the arbitration and the precise nature of the issues they wish to be determined. This enables the parties to take ownership of the whole process from beginning to end, far more than would be possible in any court litigation.
- The process of arbitration can vary from case to case and can be tailored to suit the individual case, the arbitrator may agree to deal with matters by telephone in some instances, on paper or face-to-face. Issues can be determined all at once or sequentially to permit negotiation and settlement of other issues. Parties can by agreement, appoint relevant and appropriate experts where necessary.
Speed and convenience:
- Some very straightforward matters can be dealt with on paper if the arbitrator and parties agree.
- If an oral hearing is required, the arbitrator is often able to deal with case management by way of a telephone hearing and timetable an oral hearing to follow swiftly thereafter.
- A determination can be delivered in days following the hearing.
- Many arbitrators offer the flexibility of hearings in the evening and at weekends to suit the convenience of the parties.
- The environment in which the arbitration is determined, usually solicitors offices or counsel’s chambers, are far more conducive to dispute resolution than the cramped and crowded waiting areas of the court.
- Most arbitrators’ fees are relatively modest compared to the cost of contested litigation. A fixed fee is agreed between the arbitrator and the parties before any work commences and is paid before the release of the determination.
- Arbitration is far cheaper than litigation. It is a complete myth that arbitration is for the wealthy. Arbitration should be considered in all cases as an alternative to litigation. The hidden savings should be factored in, such as not having to take time off work to attend a hearing, the speed with which the issues can be swiftly resolved saving costs in case management and hearing times.
- Streamlining the process in this way inevitably saves costs.
The binding nature and finality of arbitration:
- Whilst the “no order principle” must be considered in all children’s matters, if the nature of the determination requires the decision to be converted into an order it can be following the issue of the determination.
- Arbitration determinations are therefore binding.
- The court has made it clear in S v S 2014 EWHC 7 and DB v DLJ 2016 EWHC 324 that it will not only approve IFLA arbitration awards but will uphold them.
I would encourage solicitors to consider arbitration as a real alternative to litigation. In truth it’s hard to think of any down side to it.
Barrister MCIArb (children)