Family law arbitration – a better way forward for your family or even your business?
Fiona Campbell of Macleod and MacCallum retells her background story to The Executive Magazine, explaining the process of arbitration and why this path is now being followed by many parties trying to resolve some of the complex issues surrounding relationship breakdowns.
When I started practising family law it was sometimes referred to (unfairly) as “girlie law”. Within the Highlands there were few solicitors specialising in family law. Solicitors dealing with court work often covered all aspects of criminal and civil work with some “girlie law” thrown in for good measure.
However, family law in the form of divorce, cohabitation, residence and child law issues represents a significant part of the work load of a sheriff court. Over the past two years, 10 sheriff courts in Scotland have been closed, two of them within Highland. Issues arise as to the capacity of the remaining courts to manage the high volume of business passing through their doors.
It was observed in the Scottish case of M v M (2012) SLT 428 that “disputes involving parental rights and child welfare issues are notoriously sensitive and difficult to resolve”. With this in mind, and against the background of questions over accessibility to justice, an increasing number of clients are looking to alternative forms of dispute resolution. This appears to be especially so in family law cases where there is often more than simply money at stake.
Sometimes when a relationship breaks down the parties can resolve issues relating to finances and children themselves. They can also use mediation or collaboration to help reach agreement. On occasion, however, parties cannot agree and somebody else is needed to make a decision for them. Traditionally that involved the parties going to court. It is, however, well recognised that the court process can be stressful for parties. It is expensive in terms of money and time. It is inflexible and involves matters which, by nature, can be sensitive and private being decided in a public forum.
While in the commercial world arbitration has been available for decades and indeed is part of Scotland’s legal history, until recently it has not been part of the mainstream of dispute resolution solutions for family law clients. This changed with the implementation of the Arbitration (Scotland) Act 2010. The act paved the way for the use of arbitration in, among other areas, family law and provided the necessary framework for most disputes between spouses or partners to be referred to a mutually selected arbitrator. In 2011, I was one of 25 family lawyers and advocates to be trained in arbitration. The Family Law Arbitration Group (Scotland) known as FLAGS was officially launched on February 29, 2012, and since then another 25 lawyers have successfully undergone training to act as family law arbitrators under the FLAGS Scheme.
Where a decision is required, arbitration offers an alternative to court. The parties must first agree to arbitrate and are formally bound by the decision of the arbitrator. That decision is enforceable in the same way as a court decree.
There are huge benefits to arbitration. Firstly, in arbitration the parties can choose the arbitrator with relevant experience and that arbitrator will deal with the case throughout. All arbitrators are accredited family law specialists, advocates or former members of the judiciary. Secondly, arbitration is quicker and more flexible than the court process. Parties agree the location, dates and times of each hearing. This means that instead of having to fit into a court schedule, parties fix their own timetable. This is certainly an advantage to clients who have family/work commitments or operate their own business.
The Arbitrator could even be asked to address a specific issue which is hampering negotiation such as what the date of separation is or whether a parent can relocate with a child. This focused approach ensures that costs are sensibly contained. A client proceeding with arbitration will not spend time waiting in court for the case to call only to discover that another case has taken priority. Thirdly, there is also the possibility of keeping matters entirely confidential and outwith the public forum – an issue which is of increasing importance to clients.
I have seen a growing interest in parties using arbitration and for those who need a decision about arrangements for children or finances following a relationship breakdown I would recommend that they do consider arbitration as a serious alternative to court.
Fiona J Campbell