The COVID-19 pandemic has enhanced the backlog in the family justice system leaving many looking for alternatives to the traditional court process when they cannot reach an agreement.
Arbitration is one approach in family law dispute resolution where a trained arbitrator determines the issues for the parties without the need for contested family court proceedings.
Deborah Marsh, associate and collaborative lawyer in the family law team at Wake Smith looks at a recent case which brings arbitrators’ decisions in line with a judge’s decision.
Deborah said: “A backlog has existed in the family justice system for some time, but this has now been worsened by the pandemic, so many are looking to alternatives to the traditional court process when they cannot agree.
“Arbitration is one such alternative where a specially qualified and accredited family arbitrator in effect acts like a Judge and determines the issues for the parties whether these relate to their children or financial matters.
“And rather than having a Court imposed timetable, arbitration can be arranged quickly and the confidential process can be determined by the parties involved. It is also flexible and the costs can be considerably less than court proceedings.
“It was thought that the ability to challenge an arbitrator’s decision was extremely hard to do potentially causing parties to be concerned about using arbitration.
“However, a recent decision Haley v Haley 2020 of the Court of Appeal has brought the decisions of arbitrators’ in line with a Judge dealing with contested family court proceedings.
“The family court must ensure that decisions are fair for both parties and in the welfare of the children involved.
“This means that approval, not only of awards made via arbitration but, also agreements reached between parties (either directly via themselves or via other alternatives such as collaborative law or mediation) is not just a rubber stamping exercise by a family Judge, the Judge must apply the law.
“Whilst parties to arbitration must expect to be bound by the arbitrator’s decision at least they can now enter the process knowing that they have the same safeguards in place as those parties who choose the traditional court process.”
Arbitration and collaborative law are now two of the many legal options available for those going through
a divorce/dissolution and disputes about child arrangements and regarding finances and property following the breakdown of their marriage or civil partnership.
If you feel that collaborative law or arbitration might be the right choice for you please arrange an appointment with Wake Smith’s collaborative lawyer Deborah Marsh who can discuss the processes in detail with you at [email protected] or on 0114 266 6660.
