Getting disputes resolved in the middle of a pandemic…

In the right disputes, arbitration is the best way of getting to a resolution, at a time when our court system is under enormous pressure and progressing cases is a struggle. FLAGS (Family Law Arbitration Group Scotland) issued Guidance for Arbitrators conducting family arbitrations on a remote basis yesterday. The Guidance was co-authored by Rachael Kelsey, who was one of the founders of FLAGS. You can find it here.

There are cases that need to be in court. But there are many others, which do not. Cases which could be resolved more quickly, more efficiently and at less cost if remote arbitration was used. Cases where there is still some measure of agreement and common goodwill, but where people are stuck and do need someone else to take a decision:

• Situations where, for example, there is a single, discrete issue that is hampering progress, like a disagreement about what the appropriate valuation date is, when it comes to valuing assets;
  
  
• Matters which could readily be dealt with electronically (and remotely), and those where a bespoke, abbreviated process would be better suited to resolve issues- matters where there have been negotiations and are fully prepared, so don’t need a lengthy adjustment phase and can move straight to a final hearing;
  
  
• Cases where it is hugely urgent to the parties, but which may not fall within the definition of urgent for the court- financial provision on divorce, for example;

In family law cases, arbitration is still a relative newcomer in the range of dispute resolution options. Mediation, which arrived in Scotland nearly 40 years ago, was regarded with suspicion for decades and Collaborative Family Law, which arrived in 2004, has still not found its place.

Time will tell whether arbitration becomes embedded more quickly than was the case for these other forms of DR. That we already have a thought through, comprehensive and effective model in FLAGS, and a panel of nearly 50 experienced, knowledgeable and trained arbitrators is a godsend though, in the strange and horrible times of Coronavirus. Having had to deal with so much rapid change, in such a short time frame, we may now be less anxious about the perceived novelty of a scheme that is only a decade old.