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  1. Law
April 3, 2012

Arbitration May Spell the End of the Rancorous Public Divorce

By Spear's

Carol Ellinas asks whether the recent introduction of arbitration for family disputes sounds the death knell for the media frenzy surrounding divorcing celebrities
THE FAMILY COURTS in England and Wales and stretched to capacity. The average divorce can take upwards of a year to complete and much longer when involving considerable wealth. In an effort to reduce costs and speed up divorce proceedings it is now possible to settle family disputes through arbitration. Quicker and less expensive, arbitration also has the advantage of remaining confidential – an attractive proposition for the high profile, high net worth individual.

Sadly there will always be a core of individuals who feel so betrayed that they want the world to know how badly they have been treated. There are also those who believe that all publicity is good publicity. They will continue to take every opportunity to talk to the press about their situation. Fortunately the vast majority consider their divorce as being too private for public consumption and will do whatever necessary to keep the details private. This can lead to compromising their position or even ‘giving into pressure’ so as to avoid a court hearing.

Choosing the new option of arbitration is one way to ensure that a highly qualified neutral professional can hear their case argued in full and who can give a judgement which the parties are bound by, knowing that their case will never be the subject of public scrutiny.

There are obvious advantages in opting for arbitration. It is not unusual to have to wait for up to a year to get a final hearing date in either the County or High Court, especially if the case it likely to run for several days. Choosing arbitration could result in a considerable saving in both time and legal costs and will avoid the need to continually update your financial disclosure whilst waiting for your court hearing. You will have a decision far sooner and be able to pick up the pieces so you can move on with your life. The setting will be far more informal, a court room can be a very intimidating place especially if you have to give oral evidence.

However, the disadvantages cannot and must not be ignored. Firstly both parties will have to agree to use arbitration. Just because one party is all in favour of using arbitration doesn’t mean their ex feels the same way. There is also some debate going on as to how legally binding an arbitration ruling will be. It would be prudent to get the ruling approved by the same court where your divorce petition has been issued and then turned into a sealed court order which would be enforceable.

It is of course crucial to select the right solicitor to help anyone through what can be the most difficult time in their life. Everyone, whether a celebrity or otherwise needs to feel confident that they are receiving the best and most realistic advice possible. From the outset the solicitor should explore the possibility of negotiating a settlement. If this is unrealistic or proves to be unachievable then they should discuss all the available options.
AT THE EARLY stages the possibility of using the collaborative process (as used by the comedian Robin Williams) or mediation should be actively encouraged. In fact it is now impossible to issue an application in the court to deal with financial issues unless you have attempted mediation, or your circumstances are such that mediation is impossible, say for instance if the has been physical abuse in the relationship.

If negotiation cannot or will not work then the solicitor should advise on issuing court proceedings. This is when legal costs can seriously escalate. The option of arbitration as an alternative to court will, I am sure, appeal to a lot of clients and the solicitor should raise the option with everyone concerned promptly.

The appointment of an arbitrator can be either by agreement or the parties can ask the Institute of Family Law Arbitrators (IFLA) to select one. The majority of Family Law arbitrators are senior family law barristers so already have extensive court room experience and are experts in their field of law. Both parties can be represented by their own barristers and the case can be heard using the same format as if it were taking place before a judge. Obviously there will be the additional costs of the arbitrator to take into account whereas a Judge is paid for by the taxpayer.

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The arbitrator will have to apply the laws of England and Wales to the facts of particular case and the parties can refer to previously decided cases to argue their case, safe in the knowledge that their case will not end up in the law reports or tabloid press.

Carol Ellinas is a partner and head of the Family team at law firm Winckworth Sherwood LLP. She can be reached via the firm’s website

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