There is no doubting that the Covid-19 pandemic has presented unprecedented challenges for the Scottish court system. Like a cruise liner being expected to immediately alter direction, it is unsurprising that the courts are taking some time to adapt to remote working. As at this point in time, Sheriff courts are still not positioned to hear evidence from witnesses by way of Proof. Although teleconferences are now routine, it can be unsatisfactory where parties are not in the same room as their advisor and the court has no ability to observe the behaviours of parties.
The alternative options for separated spouses and parents have been expanded over the last 30 years, with methods such as mediation and collaboration gaining traction, but nothing mirrors the adversarial process of litigation in the way that arbitration does. Arbitration in family law offers an alternative to a litigated process, offering advantages which are not constrained in the same way as Scotland's national court system is, while delivering the outcomes that some parties need in order to achieve a resolution. Arbitration contrasts with the court process where is no guarantee the same sheriff will hear all elements of a case. Arbitration retains the one personality, selected jointly, and the cost of that appointment can be agreed.
Arbitration offers versatility. Parties can agree to arbitrate on narrow issues such as which school to send the children to. Where parties cannot reach agreement, then arbitration has much to offer as an alternative to litigating.
It can mirror the court's powers, including obtaining the views of a child and appointing experts to provide input. It is conducted privately and not in a public court, thereby reducing the risk of publicity. Confidentiality is at the heart of the process.
How does it work you ask? You choose your solicitor, just as you ordinarily would. Whether that’s the family lawyer you have selected on recommendation or simple googling, there is no requirement for a skill different to that of any experienced court lawyer. The appointed solicitors initiate Arbitration by selecting and appointing a mutually approved Arbitrator. Arbitrators are very experienced family law specialist practitioners or advocates in family law who have been trained by the Family Law Arbitration Group Scotland (FLAGS) to conduct an arbitration.
Once appointed, the arbitrator directs how the proceedings should proceed. Hearings can be held either remotely or not, and can therefore be managed without the constraints of court premises. Time is specifically set aside by the arbitrator to read papers, prepare for hearings, and actually hear any evidence on the date allocated, without pressure of other court business.
Parties can invite the Arbitrator to hear evidence from witnesses who are questioned on oath in the same way as they would otherwise be by the court, with solicitors challenging their evidence in the presence of the Arbitrator and parties. The Arbitrator can select a location for any hearing or direct that hearings are by written evidence or remotely. Public sector limitations on the digital systems available are over ridden. There are no fees payable to a court, and no business competing for the time required to deal with a matter.
The Arbitrator's decision must be produced within 28 days of any final hearing or the date for submission of affidavit evidence. Because of other demands on Sheriffs and judges, some written decisions of court can take many months to be issued.
Any award made by the Arbitrator can be registered in the Books of Council & Session and has the same status for enforcement as that of a court order.
Perhaps now more than at any other time is the beginning of the era of Arbitration in family matters. It is anticipated that the Scottish government will shortly legislate for legal aid to be available for alternative dispute resolution such as arbitration in certain child disputes, recognising that this is a credible process for the changed world we are all now living in
Fiona Sasan, Family law accredited specialist , Flags Arbitrator and Partner, Morton Fraser