Financial remedy mediators have been concerned that there would be some cases for which complete agreement might prove elusive – whether a small sticking-point, or a fundamental difference on a particular point.
It’s right to say that facilitation (or mediation) has a very high success rate. But those who are experienced in this field felt that getting parties close to agreement, or even at the point where agreement was never going to happen, and then returning clients to the court process, was not a good idea.
This is where divorce arbitration comes in.
It was originally conceived as a ‘back-stop’ – to be suggested should facilitation not have succeeded in providing a full settlement. The offer of a private arbitration would create the opportunity for the parties to seek a binding outcome, enforced by the courts on the basis that both parties had agreed to it; and the resulting award would be sealed by a court unless there was a good reason not to do so.
This month sees the first forty family arbitrators, trained by the brand new Institute of Family Arbitrators, a group formed to deal with financial arrangements following separation. One of the forty, Marilyn Stowe, senior partner at Stowe Family Law, suggests that the arbitration process will be attractive to two groups of people – those involved in big-money cases, clients who don’t want to wait for the court process; and those who want a specific arbitrator to decide the case or a specific point.
The blogger senses that family dispute arbitration will be taken up by a wider client base. It is an attractive option, not just those with considerable wealth or specific needs – but the ordinary couple who have tried for a mediated settlement and would welcome a final solution should they not agree.
Perhaps Jane Croft’s article yesterday in the Financial Times misses an important point. Arbitration is not simply for the super-rich. After all, they can afford to fight their cases out behind closed doors, before a High Court Judge, with Queen’s Counsel representing them. No, the arrival of private arbitration in the field of financial remedy proceedings is for all – a simple, low-stress, economic alternative to the court battle.