It’s no secret that the family court is overworked, understaffed and simply on its knees. Divorce applications are increasing, and with increasing financial pressures, more people find that they are unable to resolve their disputes without judicial intervention. For those people, it can mean months (if not years) of delays, cancelled hearings and frustration. As a general rule of thumb, the longer the delay, the more expensive it gets. As dates are pushed back, papers need updating and the process starts all over again.
So what do we do about it?
April 2024 brought with it changes to the Family Procedural Rules (the rules the govern family court proceedings) – in particular the re-branding of Non-Court Dispute Resolution (NCDR). For years, lawyers have banged the drum of alternative dispute resolution (ADR) as a means to avoid lengthy court sagas, but now the emphasis is back on the client to consider other forms of resolving their dispute at every single stage of proceedings.
NCDR covers various methods from mediation, roundtable discussions and early neutral evaluations or ENEs (a written indication assessing the case). Sitting alongside is a process known as arbitration – the method of selecting a private “judge” to consider evidence and make a legally binding decision. It involves the parties signing a contract agreeing to be legally bound by the decision of the arbitrator. That decision is binding and can only be appealed if the judge gets it wrong (exactly the same as cases in the family court).
So what’s the difference?
In the family court, it may take months or years to get to your hearing. Arbitration can be convened as quickly as 24 hours.
When you finally get to your family court, you may be in front of a judge who has little or no experience of family law. Your arbitrator will be a family law specialist, selected by you.
Your family judge probably won’t have had time to read any of the papers you, your solicitor and barrister have spent months curating. Your arbitrator will have read every single page and will know your case inside out.
Generally speaking family courts are not nice places to be (too hot, too cold, uncomfortable, crowded). Arbitration will take place at an agreed location – usually in barristers’ chambers with the nice biscuits.
With all of this in mind, the final decision of the family court could be weird, wonderful and downright bizarre. The arbitration award will be considered, concise, articulated to cover every applicable point of law and how it applies to your case. In short, the outcome is likely to be the fairest it can be.
Arbitration isn’t just for financial disputes. It can be used to resolves contact arrangements or even very particular points such as where the children go to school or whether a certain pension should be shared.
Whilst the family court is a public service and should be made available to all, for the time, cost and satisfaction that the job will be done properly, arbitration really is a beacon of common sense.
If you have any questions on arbitration, NCDR or the family court generally, please do not hesitate to get in touch.