On Monday 25 September 2023, the statutory instrument making amendments to the Ordinary Cause Rules 1993 comes into force. This changes the procedure for defended family actions in a wholesale manner, replacing the existing procedure with rules heavily focused on case management.
Unfortunately, there are some disputes where matters cannot be resolved through negotiation or where mediation may be deemed unsuitable. In these cases, the usual course of action would be to raise a court action. However, there continues to be high demand in the courts and as a result there is a significant backlog of cases waiting to be dealt with. The new court rules impose specific and longer time periods before a case can proceed to a full hearing and will likely result in parties waiting even longer for a decision to be reached.
For anyone who would rather obtain a decision quickly and avoid these delays, the lesser known yet highly advantageous alternative of arbitration should be considered.
What is arbitration?
Family arbitration involves parties agreeing to appoint a family arbitrator, essentially a private judge, to make decisions regarding any family issue. An arbitration agreement will be prepared and signed by both parties before beginning the process. The arbitrator’s decision carry’s the same weight as a court order and is enforceable.
A tailored approach
In family arbitration, the process is not one-size-fits-all and is not subject to the court rules outlined above. Instead, the arbitrator has greater flexibility to customise the procedure, and how the case will be dealt with, considering the parties’ views and any specific needs. This ensures the procedure can be adapted to suit the task at hand, and provides parties an opportunity to reduce the time and costs involved in getting to a decision.
Swift decisions
In many cases, time is of the essence. Family arbitration can expedite decision-making when necessary, bypassing the waiting periods outlined above for cases to be heard in court.
Protecting privacy
Unlike court proceedings, which are often open to the public, arbitration helps keep matters confidential. This added layer of discretion can shield the parties and witnesses from potential unwanted exposure and reduce conflict.
The expert touch
Family arbitrators practicing in Scotland are highly skilled experts with extensive experience in family law. Their expertise in this specialised field ensures that they approach each case with the nuanced understanding it deserves.
Costs
There is significant potential in arbitration to reduce the legal costs. In court cases, there are various outlays that must be met by parties and if the case proceeds to a full hearing, parties must also pay a fee covering the court time which has been taken up hearing their case. In arbitration, although the arbitrator will charge a fee, the ability to reduce the procedure required for the arbitrator to reach a decision, will often save parties time and money.
Arbitration’s bespoke nature offers parties a swift and efficient alternative to court to resolve family matters. It can also be relied upon if your diet of proof requires to be discharged due to lack of court time.
If you need guidance on a family dispute and wish to explore the most suitable dispute resolution method for your situation, please get in touch with one of our expert family lawyers.
Lesley Gordon, Partner & FLAGS Arbitrator: lxg@bto.co.uk / 0131 222 2953
