Gillian Crandles and Alasdair Loudon: Arbitration will keep family law cases out of court

This is especially so in family law cases where there are often issues other than money at stake, and with the costs of long-running litigation becoming prohibitive. The practice of family law in Scotland has evolved rapidly over the past 30 years to encompass a more consensual approach, including the use of mediation, collaborative law and now arbitration.

In the commercial world, arbitration has been part of the landscape for decades and indeed is part of Scotland’s legal history going back centuries. Arbitration is a form of dispute resolution outside the courts, where the parties to a dispute refer it to one or more persons by whose decision they agree to be bound – a quasi private court. In family law cases, although provision has often been made in agreements between spouses to refer matters of dispute to arbitration, the lack of a statutory framework for arbitration proceedings has prevented cases proceeding in this way.

This changed last year with the implementation of the Arbitration (Scotland) Act 2010, paving the way for the use of arbitration in Scotland in, among other areas, family law. The Act provided the necessary framework for most disputes between spouses or cohabitants to be referred to a mutually selected arbitrator.

A group of 25 of Scotland’s leading family lawyers (the authors included) recently gathered to inaugurate the Family Law Arbitration Group (Scotland), or FLAGs, which officially launched last week, following training and accreditation allowing them to practise as FLAGs arbitrators and indeed, to conduct cases at arbitration.

There are four principal benefits arising from the use of arbitration rather than the courts. Firstly, the arbitrator appointed will almost always be a family law solicitor or advocate; in other words, an expert in the field in which the dispute is rooted. Secondly, the procedure will be much more straightforward and flexible and, as a result, the points in dispute more sharply focused. For example, parties can decide whether or not there is a need for oral evidence, or whether written statements will suffice. Thirdly, it is likely that matters referred to arbitration will be dealt with much more quickly and efficiently than would have been possible had the same case been taken to court. Lastly, there is the possibility of keeping matters entirely confidential.

Although there are certain costs involved in arbitration which do not arise in court proceedings – notably the arbitrator’s fee – the streamlining of the procedure is such that it is almost certain the overall cost to the parties will be less than is currently the case.

Divorce itself is an issue of legal status; it isn’t possible for an arbitrator to grant divorce, so this will be reserved to the courts. However, most other issues involved in a family law case will be suitable for referral to arbitration, for example financial disputes over the value of certain assets and/or legal disputes over the status of a particular asset being defined as matrimonial property or not.

Disputes relating to children, such as the party with which a child should reside or whether one of the parties should be allowed to relocate abroad, are also suitable for referral to arbitration, assuming suitable terms of referral can be agreed between the parties. This is a marked difference from the position in England where family law arbitration will be launched later this year. There they have decided, at least for now, not to deal with residence/contact disputes in arbitration.

It will be fascinating to see how the use of arbitration in family law in Scotland evolves and the hope is that within three years almost all contentious issues are referred to arbitration.

l Gillian Crandles and Alasdair Loudon are Partners at Turcan Connell and members of the Family Law Arbitration Group (Scotland)