CIArb London Branch Seminar: Family Arbitration – Is it stuck in the doldrums?

The London Branch held its first seminar of 2018, controversially entitled ‘Family Arbitration – Is it stuck in the doldrums?’ at Stewarts on 8 February 2018. 

The session, which was chaired and introduced by Irvinder Bakshi (Chairman, London Branch), provided insights from a panel of distinguished experts including Sir Paul Coleridge (former High Court Judge), Elissa Da Costa-Waldman (New Court Chambers) and Sam Longworth (Stewarts). 

Elissa Da Costa-Waldman began by providing an historical overview of the development of family law before addressing the advantages of family arbitration, including the ability to keep matters confidential, speed and efficiency. Likening the court system to the NHS and arbitration to private healthcare, Elissa noted that in the last six years there had been 182 family arbitrations relating to financial matters and 12 relating to children, of which 151 financial arbitrations and 2 relating to children had taken place since May 2017. Acknowledging the advantages Elissa considered why family arbitration was not more popular, noting the perception that it was not a ‘tried and tested’ mechanism; the potential lack of knowledge and awareness among solicitors, who were more comfortable with the court system; and the role of the judiciary in promoting it, highlighting cases such as Re AI and MT [2013] in which Baker J. endorsed the use of arbitration in family disputes. 

Introducing himself as a believer in family arbitration, Sam Longworth highlighted the role of solicitors, mediators, barristers and the judiciary as gatekeepers in the quest to kickstart the arbitration revolution in the face of a court system in crisis. Sam identified the importance of considering arbitration as a product or brand and making a business case for its use, characterising it as a private court in which parties could resolve disputes on their time frames. He raised challenges presented by the perception of arbitrator bias, suggesting that arbitrators who have sat as full or part time judges may be more favorably perceived by clients, and suggested that family arbitration may be particularly suitable for parties arguing about sums between £1 and £10 million. 

Sir Paul Coleridge, noting the many advantages of family arbitration and the seemingly inexplicable lack of uptake from the profession, opened the discussion to the floor, posing a series of questions to those with and without experience of family arbitration. A lively debate followed.  

Irvinder Bakshi thanked the speakers and attendees for their thoughtful contributions to the debate before inviting everyone to enjoy the reception generously provided by Stewarts.