Alternatives to the family court process - new Family Law Children Arbitration Scheme to be launched

2 March 2016

For many, the prospect of attending a court hearing to decide upon the future of your family or finances can be a daunting process. Courts tend to be formal, overwhelming and expensive. Thankfully, court is not the only option and alternative dispute resolution methods, such as arbitration or mediation, can often assist in achieving a more amicable, timely and economical resolution. 

The family courts are struggling to cope with the volume of cases on its lists and the government has tried to divert suitable cases away from the court system to arbitration or mediation. Arbitration, which involves  a judgment imposed by a privately chosen arbitrator rather than by a judge in the formal court process, has received judicial encouragement by Sir James Munby in the case of S v S [2014] EWHC 7 (Fam) where the president of the family division said that “there is no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make a decision for them”.

Arbitration to become available for couples wishing to resolve children disputes

Currently, arbitration can only be used to resolve financial disputes between couples going through a divorce. However, a new Family Law Children Arbitration Scheme has been announced and will be launched later this year. This new scheme will cover private law children disputes including disputes as to where children should live, the amount of time children should spend with each parent and internal relocation disputes. At the moment, unless you choose to mediate or can resolve the situation without assistance, the only route available to you to resolve a dispute over your children is to go to court. Once this new scheme is available, you will be able to access the faster and often more efficient process which is family arbitration. 

Family arbitration has been growing in popularity in recent years after the initial concerns, e,g, regarding cost and whether the awards would be upheld by the court, have been alleviated. Arbitration is often quicker and cheaper than going through the court process and only in exceptional circumstances can you back away from the award. Arbitration has been used for years as a successful method of resolving commercial and construction disputes.

There are many benefits to arbitration, including:

  • You are able to choose an arbitrator who has the particular expertise relevant to the matter in dispute
  • You have a direct say in how the proceedings are run and you can decide how to deal with financial disclosure and where and when the hearing(s) take place
  • The process is more flexible and confidential
  • It takes place in a more relaxed atmosphere which is less intimidating than the court process
  • The hearing can often take place in only one day and the arbitrator will make a decision that will be final and binding on the parties

Further information

If you would like any further information on alternatives to litigation through the courts, please click here or contact Charlotte Bradley or another member of our family team.

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