If Arbitration is now to be accepted as a mainstream alternative to Court then it should be an option that we are all considering when drafting Minutes of Agreement, in any and all family actions, where some form of review may be needed. Arbitration brings with it the benefit of being able to have a say on how, where and by whom your dispute is resolved. It can be a quick, efficient and private bespoke process. It does not have to deal with all matters in your Agreement. For example you could agree to arbitrate on any variation of aliment/periodical allowance or on where a child is to go to school, in the absence of agreement on this. You also have the benefit of knowing that your Scottish Family Law Arbitrator will be a very experienced Family Law Practitioner.
Please give Arbitration some thought the next time you are drafting an Agreement or going to court on a family law matter. To assist, here is the style clause I am putting in my Minutes of Agreement on certain specific matters:
Arbitration in respect of Aliment, education costs or periodical allowance
In the event that any dispute arises between the Parties on the interpretation of any part of this Agreement and in particular Clauses [2, 3 and 4 hereo]f, the matter in dispute will be referred for determination to a mutually chosen Family Law Arbiter who is a member of the Family Law Arbitration Group (Scotland) (FLAGS) and whose decision will be binding upon the Parties. Failing agreement by the parties on the choice of Arbiter, the appointment will be determined by the Convenor of FLAGS. Notwithstanding whatever the preferred rules of FLAG may be, the parties are agreed that the Arbitration procedure shall be conducted as follows. The Arbiter shall be given a written joint remit by the parties which requires him/her to produce a decision in writing within two months of the date of his/her appointment (or such other agreed time scale as the parties may determine); which restricts the evidence to written submissions by the parties or their advisors with productions, (which evidence and submissions shall be laid before the Arbiter within one month of the date of his/her appointment); which excludes the need to appoint a Clerk; which excludes the power to award expenses; and which grants power to make a retrospective variation of no more than three months. The Arbiter's fee shall be agreed in advance and shared equally between the parties. The parties acknowledge that in proceeding with Arbitration in this manner they seek to find an efficient, quick and cost effective means of resolving their differences. Notwithstanding the foregoing, either party shall have the option of seeking a remedy in a court of competent jurisdiction, and without prejudice to the court's powers to award expenses.
The style can easily be adapted to allow parties to jointly decide, rather than have to, use the process. Any or all matters in the agreement can be subject to Arbitration. You may want to leave it until a dispute arises to decide on the specific process - it need not be in writing, the rules allow for live or virtual Hearings or a combination of approaches. There are no geographical constraints. The style is there to be adapted to your particular case.
I have to declare an interest in this matter. I am a family law Arbitrator as is my colleague Fiona Sasan. If you have any questions in relation to the process or are considering Arbitration as an alternative to court in a family law matter then please do not hesitate to call us.