If you talk to any family lawyer in any part of the country, most will tell you that the Family Courts are currently in a terrible state because of underfunding, staff shortages and a lack of judicial availability.
Funding problems in the NHS and education system are well-documented in the media, but less so are the problems in the court system.
It may come as a shock that the Family Courts are experiencing these backlogs and delays, but for family lawyers unfortunately these difficulties are all too familiar. All of this can have a significant impact on a family law case and exacerbate an already stressful time.
Court Delays and Cancellation
One of the biggest gripes for family lawyers and families is the sudden cancellation of court listings. Understandably, a court date is a major event and milestone for someone going through a legal dispute, particularly when important matters such as children, finances and property are on the table.
A looming court date can bring nerves, stress and anticipation, and it takes a lot of practical and mental preparation. A lot of time and money is invested in getting things ready.
Sadly, it is not unheard of for hearings to be cancelled last-minute, often the day before, due to for example the unavailability of a judge to hear the case.
Alternatives to Court
An increasingly popular way of avoiding the whirlwind of the court system and the unpredictability of hearings being pulled from the diary, is to resolve matters through Family Arbitration.
Typically, Arbitration can be used to help separating couples navigate the following disputes:
- Finances and property
- Living arrangements for children after separation
- Other arrangements concerning children’s upbringing
- Relocating with children to other parts of the country or abroad
Our Family Law experts share their experience with this alternative method to finding a resolution that can be less stressful and more flexible than attending court, particularly at the moment where the court system is slow and unreliable, and cases are often being delayed for many months.
What is Family Arbitration?
Family Arbitration is a means of settling issues relating to family law without the need for the involvement of the court.
Just as there is a private system of medical treatment and education, Family Arbitration is a private system of achieve a legal resolution to a dispute.
The arbitrator adjudicates the dispute and makes decisions about the resolution of a case in the same way a Judge would. The difference with Arbitration is that your case can be heard sooner and you effectively go to the front of the queue.
The costs of the arbitrator are typically split between both parties equally.
What is the Process?
1. The parties enter into an agreement to be bound by the decision of a suitably qualified person, an arbitrator, who they appoint to adjudicate the dispute and make an award. The costs of the arbitrator are split between the parties equally.2. After signing the agreement, each party will undertake their own enhanced DBS checks, which will be sent with the signed agreement to the appointed arbitrator.
3. Subject to the parties raising no safeguarding concerns and a clear DBS record, the arbitrator will provide dates of availability to hear, firstly an initial housekeeping meeting and secondly the Arbitration itself.
4. The parties must agree where the initial meeting and Arbitration should take place and will split any costs equally. Commonly the initial meeting is heard remotely, via Zoom or Teams. There are generally no restrictions on where the parties should have the Arbitration, although it should take into account travel time of each party and the arbitrator. It is common now for a barrister’s chambers to accommodate an Arbitration.
5. At this initial meeting the parties will agree what evidence is necessary to determine the case (i.e. statements, valuation reports, social workers reports) and the timetabling of matters. The meeting is recorded and the parties are given copies of that meeting as well as a document which sets out what was discussed and decided in terms of evidence.
6. Once the parties are agreed on evidence, between the date of the initial meeting and the date of Arbitration, the parties will prepare their evidence by a set date, filing with each other and the arbitrator.
7. The arbitrator will then read very carefully the evidence ahead of the arbitration, and on the day the evidence will be tested by the parties’ counsel. The Arbitration is audio-recorded, so the arbitrator can refer back to the evidence in preparation of their determination.
8. The arbitrator, after hearing the evidence will often take a few days to review the evidence and make a decision, this will be recorded is a written document called the determination.
9. Once the arbitrator hands down their determination, this is given to the parties and their respective barristers. The barristers will draw up the order which both parties will sign, this is then filed with the court as a joint application. The judge will review the matter on paper and approve the order. There is normally no reason for the parties to attend court; this is purely administrative.
10. Once sealed, the order is enforceable in the same way a court order would be if made through contentious court proceedings.
The advantage of Arbitration is that it is more flexible and built around the parties’ circumstances. The parties can choose the Arbitrator and agree the timetable with the help of the Arbitrator. The Arbitrator will be able to dedicate more time to properly reading into and considering the case, as opposed to a judge in court who may have a busy list and juggling several other cases on the day. The Arbitrator will often be an expert in their field, in contrast to a judge whose background and training may not necessarily be in the area of Family Law.
Arbitration does come with additional costs, in that the costs of the Arbitrator have to be paid for privately by the parties, but this is often a price worth paying to get a swifter outcome and ensure your case gets the full attention and consideration it deserves.
Family Legal Advice
If you are looking for an alternative to family court or have children matters that you need to discuss with a Family Solicitor, then please do not hesitate to contact our experienced team.
You can call us on 01256 844888, email enquiries@lambbrooks.com, complete a form on our website or alternatively, you can speak to our online chat assistant who is available online 24/7.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.