Tuesday, March 06, 2012

Arbitration: No alternative to litigation?

Miles Geffin
Further to this post, I was interested to see this article in Solicitors Journal yesterday, in which Miles Geffin, a legal director in Mishcon de Reya’s family department, expresses the view that the new family arbitration scheme is no alternative to litigation. (Note that the article may only be available for non-subscribers to view for a few days.)

Whilst he welcomes the availability of alternatives to traditional litigation in the family law arena, Geffin raises three concerns about family arbitration:

Firstly, the point that has already been made, that it is doubtful whether any award made in arbitration can be fully binding. "Whether or not the award is contractually binding", he says, "it will still need to be subsequently approved by a judge before it can be converted into an enforceable order of the court." As I indicated in my previous post, I agree with this assessment.

Secondly, a point that I have not seen raised elsewhere, he says that: "...the scheme offers no independent organisation that is mandated to investigate complaints about the arbitrators’ appointments process or where allegations are made concerning the arbitrators’ conduct." I'm not sure of the validity of this argument - I would have thought that most people going to arbitration would be satisfied that the Institute of Family Law Arbitrators could deal with any such issues, not that they are likely to consciously consider such matters,

Lastly, he considers "the most significant issue" to be whether there will be much of an uptake for arbitration as an alternative to litigation. He points out that in the commercial sphere, where arbitration has been particularly successful, parties will contract into arbitration when they negotiate the terms by which they are conducting business. With divorce, he says, the only opportunity to agree to arbitration in advance would be in a pre-nuptial agreement, but few couples would include such a term in a pre-nup, and very few couples enter into a pre-nup anyway. I'm not too sure that the use and contents of pre-nups will have much bearing, but I do fear that take-up for arbitration will be low, and limited to those of higher means.

Geffin expresses doubt whether, given his first two points above, lawyers will advise their clients to go to arbitration rather than litigate. I suspect that that may be putting it rather strongly - I'm sure many solicitors would be happy to suggest arbitration, in appropriate cases. Geffin does conclude, however, by acknowledging that arbitration "may prove to have a significant part to play in the resolution of family dispute[s]." Indeed it may.

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