Family arbitration expanded as court closure list is announced

The blog published on 9^th December 2015 explained the arbitration process in family disputes.

At that time arbitration was only available as a method of dispute resolution in financial/property cases. On 5^th February 2016 the family lawyers’ representative body Resolution announced a new scheme which will allow parents to use arbitration to determine the arrangements for their children.

This follows on from the endorsement given to the arbitration process by the President of the Family Division of the High Court who stated that a decision made by an arbitrator is conceptually the same as an agreement between two parties; the only difference is that the parties agree to abide by any decision made by an independent arbitrator.

It is anticipated that the new scheme will be launched in July 2016.  With the agreement of the parents, a trained arbitrator will make decisions on arrangements for children.  Such disputes usually centre around which parent children will live with and/or what amount of time they shall spend with the other parent. The new scheme will also be available in disputes over whether a child/children should be allowed to move to another part of the country. In due course, the scheme is likely to cover situations in which one parent does not agree to a child/children being taken to live abroad.

As arbitration is highly regulated process – an arbitrator takes on a role of a judge –  the scheme will have to have very strict rules which are currently under development and there will need to be training for lawyers before the first children arbitrations can take place.

Arbitration is becoming a more attractive option for many would-be litigants; it is wholly confidential and is quicker and more flexible than the court process. However, it is only an option for people who have the money to pay for an arbitrator. Whilst the expansion of any form of dispute resolution which keeps cases away from the court is great news, those who do have the resources still have to fall back on the court system which is already overstretched.

This week, we have learned that the Government has confirmed that 86 out of a threatened 91 courts will close. This includes courts in Rotherham.

The court closures mean that people, especially those on a low income, will not be able to access justice locally. Coupled with the cuts to legal aid, it is a huge concern that a two tier system of justice is developing between those who can afford to pay and those who cannot.