The multiple benefits of arbitration outweigh by far the additional costs

"Dispute resolution '¨is not alternative anymore", was the message that came out of the family law solicitors' association Resolution's DR Conference earlier this autumn.

Among the wares on display was the newest form of family dispute resolution, arbitration. Cynics may say that they have seen shiny new tools appear in family law land on many occasions, mediation and collaborative law, for example, which my firm and many others already offer. So why should family law arbitration be anything special?

The scheme, introduced only some eighteen months ago, covers a variety of family financial disputes including those arising from divorce, disputes about ownership of '¨a property between cohabiting couples and civil partnership financial claims.

The parties enter into an agreement under which they appoint an arbitrator to adjudicate disputes and '¨make awards.

Private process

Arbitration has many advantages over the court process including flexibility, confidentiality and speed. The parties can pick their arbitrator, how the arbitration proceeds and when. There is '¨no need to worry about proceedings being splashed '¨over the pages of a tabloid newspaper as the process is private and does not permit the presence of journalists.

As a family law arbitrator, when I talk to fellow lawyers about the scheme, their main worry is that this form of "private justice" adds to the costs of their clients. Yes, you have to pay for your arbitrator but this needs to be put into context.

Consider how much it is likely to cost each party waiting for months for a hearing, let alone '¨a trial date, particularly in the Principal Registry. Then factor in what can and does, happen the longer a case takes. In a matri-monial finance case, each, former, spouse has a duty to supply ongoing disclosure which may inevitably lead to yet more queries being raised. One '¨party gets fed up of waiting for settlement and starts cohabiting: cue questions about the financial position of the '¨new partner.

Legal aid cut backs mean that many more people are acting in person. It is inevitable that court delays will increase, as will the cost of "traditional" litigation in family matters.

Why pay a fee for an arbitrator when the court process only entails an issue fee? It can only be a matter of time before fees are introduced to set down applications for financial orders, even if all family law litigants are not charged a fee for final hearings. Already, local authorities trying to protect children with care orders have to pay a £2,155 trial fee.

Should we trust a new scheme which has yet to deal with a high volume of arbitrations? Arbitration has a long history in commercial disputes. The number of ARB 1s filed, the agreement to arbitrate, is growing steadily.

Client selection

You cannot pick your judge in the court system, which is not so in family arbitration. The selection can be made from the pool of family law arbitrators, experienced family lawyers who have not only satisfied the application criteria, but also have completed the rigorous training requirements and assessment. There is not going to be a daily court list of late running hearings making it difficult for a judge to give a case the time it needs.

How can the scheme grow?

Resolution has staged dummy arbitrations to conference delegates including in Nottingham earlier this autumn; family law arbitrators like me are offering talks to lawyers.

Ultimately though, it is down '¨to us, the 100 plus arbitrators '¨to make this form of DR grow. '¨We have to clearly explain its benefits to our clients and seek to '¨persuade the other party's '¨lawyers that arbitration is the '¨right way forward.

Already the judiciary is promoting these benefits. In '¨a recent High Court judgment, '¨Mr Justice Mostyn stressed that privacy can be guaranteed in this "much to be welcomed scheme".

If each family lawyer can aim to refer one matter to arbitration in the next 12 months, I believe satisfied clients and lawyers will boost the understanding and popularity of this newest type of DR. 'A' will be added back to DR for 'arbitration', not 'alternative'. SJ