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Arbitration – An attractive alternative?

“The first family law arbitrators trained under the auspices of FLAGS almost 2 years ago. Despite that, within the last week, on mentioning arbitration to other family solicitors I have twice been asked whether it  isn’t a bit “touchy feely like collaborative”. It is very far from that.
We deal with a range of clients for whom different types of process are suitable. At one end of the scale are those who can virtually sort it out themselves, at the other those who are simply not able, for whatever reason to agree and would rather hand over the decision making to a Judge or Sheriff. Collaborative practice is in my view a more suitable alternative for those who are at the first end of the spectrum towards the middle. Arbitration however is very much akin to litigation and is suitable for those who wish to leave the decision making to another , whether that be on all issues or on discreet issues within a negotiation. It is sometimes compared to appointing a private Judge, the difference from litigation being that agents and parties have the ability to choose the decision maker, that that decision maker will have relevant expertise and that there is the opportunity of tailoring the process towards a focused resolution of the particular issue in hand.
Clients are represented by solicitors throughout and on entering into the agreement to arbitrate the parties agree to be bound by The Arbitrators decision. While only a court can grant decree of divorce, an Arbitrator can make binding awards in respect of financial provision.
Is it an attractive alternative? In my view the answer is most definitely yes. I believe that it has particular applicability for those discreet issues in cases which create impasse. Issues of source of funds, 9(1)(b), 9 (1)(c), occupancy of property, and aliment. How often are months of expense incurred in letter writing, meetings and joint meetings, where one very real option would simply be to ask an independent and experienced decision maker?
A list of trained Arbitrators together with further details about the process and how it works  can be found at www.flagscotland.com.”
To discuss any of the above in further detail, please contact Balfour+Manson Partner and Head of the Family Law Team, Shona Smith.

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