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Shiva Ancliffe talks about the benefits of arbitration

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Private law children disputes – why choose arbitration?

There is no question that for many private law children disputes, arbitration is a better solution than litigation. The growing delay in court listings is a fact and is here to stay for a while, considering the restrictions posed by the pandemic. Arbitration cuts through the delay and can be far more cost effective and “user- friendly.”

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- including members of Coram Chambers. Coram has a long history and excellent reputation in arbitration, with members being appointed to act as counsel or arbitrator. Our members are available to act as arbitrators to determine family law disputes where both parties agree that their dispute should be submitted to arbitration rather than litigation.

What are the key advantages to arbitration?

  • The ability of the parties to jointly agree an arbitrator of their choice is an unrivalled advantage over the court process. Parties can 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.
  • What type of cases are suitable for the children’s arbitration scheme?
  • Disputes between parties (usually the parents) with parental responsibility which relates to the exercise of parental responsibility or welfare of the child e.g. contact, residence, specific issues such as holidays, schooling, and religious upbringing. The scheme has been extended now to cover relocation where country signatory to 1980 and 1996 Hague Convention and Brussels IIA.

What is the process?

  • 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 it 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.

How quick is the process? Speed and convenience:

  • As part of the scheme, safeguarding checks are done by the parties who are required to provide “basic checks” from the Disclosure and Barring Service (DBS). This requirement also avoids delay as it is a requirement when considering suitability for arbitration.
  • There needs to be some case management, but this can be done on the telephone to avoid delay.
  • Some very straightforward matters can be dealt with on paper if the arbitrator and parties agree.
  • If an oral hearing is required, the arbitrator following case management can 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.

Is it cheaper to arbitrate? Cost:

  • 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.

Is the arbitrator’s determination final and enforceable? The binding nature 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.
  • They are therefore also enforceable in the usual way as an order would be.
    The determination is binding.
  • If the arbitrator has got the law wrong or there is some serious irregularity there is a right of appeal.
    Short of this, 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.

Shiva Ancliffe
Barrister MCIArb (children)
Coram Chambers

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