It has long been accepted that protracted family law proceedings do little to resolve conflict in families, but rather compound that conflict in many cases. Alternative Dispute Resolution services have therefore been widely used in Ireland to give parties in the family law process more control over the outcome of their separation or divorce. Mediation, collaborative law, and settlement meeting conciliation have been used for many years to avoid the prospect of court proceedings.
Arbitration is a lesser known means of dispute resolution in the family law context. So, what is arbitration? Arbitration is a means of dispute resolution whereby two disputing parties agree to submit their dispute to a neutral third party for determination and the parties are then bound by the decision of the arbitrator. Unlike the methods of dispute resolution referenced above, arbitration takes control away from the disputing parties, but can be seen as timelier and more cost effective.
This approach is gathering momentum among family law practitioners in Ireland and to learn more, Emma Dillon, a family law solicitor in Dillon Solicitors LLP recently attended a very interesting conference on the topic.
The conference heard from two experienced and respected family law arbitrators in the United Kingdom, Suzanne Kingston, and Catherine Wood KC. Having practised in the area for many years, they were able to share with attendees both the benefits and the challenges of arbitration.
The benefits of arbitration are that the parties get to select their decision maker and there is one person who makes all decisions rather than numerous judges making various decisions throughout the court process. The parties have flexibility, control and can pace the process to suit themselves.
Like any form of dispute resolution, there will be challenges and those can arise in many forms but the most striking is the cost of engaging in arbitration. Not only do the parties now have their own legal costs, but they also have the additional cost of an arbitrator which they wouldn’t have if they go before a judge. The counter argument to that is that the process is likely to be much quicker thereby cutting down on legal costs that accrue over years waiting for a case to be heard. The second challenge and question asked by parties considering arbitration, is whether the decision of the arbitrator can be challenged, and the short answer is no. The only recourse is an appeal to the High Court to have the decision set aside.
There are cases that arbitration will not be suitable for, such as abduction, adoption or insolvency to name a few. However, issues in relation to variation, maintenance and access could very well be suitable for arbitration. It remains to be seen whether this means of dispute resolution will succeed in Ireland, the same way it has in the United Kingdom. Having attended the CIARB conference, there certainly appears to be an appetite for it and looking to our neighbors in the UK, the success of arbitration as a process in certain cases was clear.
For further advice on this and any other family law related matter do not hesitate to contact Brendan Dillon, Emma Dillon or Aoife Cathcart on 01 2960666.
