Litigation or Arbitration? There will be situations where a separated couple “get stuck” and cannot agree. We explore what options are available.
We blogged last week about the different ways of resolving the disputes that can arise in situations of family breakdown. With the best will in the world, there will be situations where a separated couple “get stuck” and cannot agree, even with the help of specialist family lawyers. This can arise in a whole plethora of situations such as trying to decide where the kids should live or perhaps where one parent wants to return to live in another country and take the children with them. Reaching an impasse is also common with financial issues too, for example, how much should be paid as short term financial maintenance for the family, or whether contributions made by one person from assets they owned before the marriage should be taken into account in overall settlement and if so to what extent. The emotional state of one or both of the parties can often be the factor that makes an agreed approach unworkable and litigation necessary.
Traditionally, these sorts of intractable issues would be determined by raising an action in court. The decision making power is passed over to the sheriff or judge . There are many instances when having the ability to take the matter to court and have a decision made by a judge can be a great boon in unlocking deadlock and there is no need to fear the court process. However, there can be disadvantages to litigation, not least in relation to cost. Lawyers (and often the parties concerned) frequently spend time hanging around court waiting to be heard and, unfortunately, time costs money. Also, if there is a need for a decision to be made quickly the court option may not be able to deliver. Although some interim matters can be resolved during the court case, a final decision would typically take about a year from start to finish.
The lack of privacy can be an issue too for certain clients. Whilst certain aspects of cases involving children will be heard in private at a child welfare hearing there can be personal and difficult situations that are dealt with in open court.
In practice, if a case goes to proof in the Sheriff Court (which is the civil equivalent of trial) the legal teams will devote a lot of time and resources preparing for the date of proof. However, several cases are likely to be booked to be heard on the same day and only one will be able to proceed. If witnesses have travelled to attend court that can compound the enormous frustration as well as the expense for all concerned.
Is there another Option?
Yes! Arbitration is often overlooked but offers an alternative approach to litigation in many family disputes. A family arbitrator (private judge) can be appointed, by agreement, to make a decision about any family issue. Their decision is binding and enforceable in the same way as a court order. This process allows a completely bespoke approach for each case. The procedure is decided by the Arbitrator taking into account the parties’ views. The option to have the evidence considered in writing rather than the oral evidence of witnesses can significantly limit the time and cost of reaching a decision. The process also enables decisions to be made quickly if necessary and ensures the privacy of those involved. The group of family arbitrators who are trained to practice in Scotland all have a wealth of experience in family law cases and importantly an interest in family law.
Would Arbitration work for me?
- Do you and your partner agree that you need a decision to be made about an intractable issue that you cannot agree upon?
- Would you prefer the decision maker to be a specialist in the field of family law rather than a judge?
- Do you prefer to keep your affairs private?
- Do you want to limit your legal costs?
- Do you want a decision to be reached quickly?
If you have answered yes to these questions then Arbitration may well offer your best option.
Our ethos in the bto family team is to provide full and clear information about the full range of dispute resolution options so an informed decision can be made about how best to move forward. Only a small proportion of families will need an Arbitrator or Judge to make a decision. You can read about the fuller range of options here.