Divorce proceedings, co-parenting, access to children and financial support are just some of the areas where disputes among families can arise. Under normal conditions, in Scotland we have access to specialist family law courts in some regions of the country, as well as designated family law judges in the Court of Session.
However, the current COVID-19 outbreak has meant that access to these courts has been severely curtailed. The courts cannot convene to make decisions in cases except those of the utmost urgency, for example to activate an emergency protection order in a situation involving risk of harm or violence, or child abduction. When the current social distancing measures are lifted, there will inevitably be a huge backlog of cases awaiting judicial determination.
In the meantime, there are families across Scotland whose disputes – though not classed as being “of the utmost urgency” – ought not to wait. Fortunately, there is another way to resolve those issues: through arbitration.
Arbitration is a process whereby a family law arbitrator – effectively a private judge – is appointed by the opposing parties to resolve the issue they are facing. The arbitrator’s decision is legally binding, in the same way that a court judge’s decision is final – but the difference is the process is usually quicker, more cost effective, completely confidential – and it doesn’t take place in a courtroom.
For example, if a husband and wife intend to divorce but cannot agree on how assets should be divided or the level of financial support to be paid, their lawyers can present each party’s position to an arbitrator, who then makes the final decision.
The only aspect of this process that cannot be completed through arbitration is the final stage of granting of the divorce itself. This has to be issued by a sheriff or judge but this administrative step can usually be completed quickly and easily after the disputes are resolved.
In Scotland, we have Family Law Arbitration Group Scotland – or FLAGS; an organisation that provides family law arbitrators in Scotland. Its members are all experienced family lawyers; either solicitors accredited as family law specialists by the Law Society of Scotland or advocates recognised as having at least ten years’ experience at the bar in family cases. A FLAGS arbitrator is an independent decision-maker who will determine the case, or any particular aspect of it, and will provide an enforceable judgment. While arbitration can be used in a variety of disputes – not just ones involving family issues – FLAGS has developed its own set of rules designed to meet the particular needs of family law cases.
One of the unique – and in these times, vital – aspects of FLAGS arbitration is the ability of the process to be tailored to the individual circumstances of the parties and their representatives. Arbitrations can be convened remotely, whether by Microsoft Teams, Zoom, Skype or another suitable video conferencing platform, or they can be undertaken based on written submissions from either party and their lawyer, which can then be emailed to the FLAGS arbitrator.
The flexibility of FLAGS arbitration is that it allows for lawyers acting for either party to agree with the arbitrator the manner in which evidence is to be presented. There isn’t a need for either party to appear personally, enabling people to comply with government guidance to stay at home and adhere to social distancing rules.
That being said, arbitration is not exclusively suited to current times when restrictions are in place on people’s movements and courts processes – it is a solution that can be used at any time, to help families looking to resolve their disputes.
Shaun George is a partner at Brodies LLP and one of FLAGS’ qualified family law arbitrators