For anyone who has had to endure what can be a soul-baring, protracted and painful divorce process through the courts, the experience will likely still be raw.
It’s perhaps no surprise therefore, that Hollywood A-listers Brad Pitt and Angelina Jolie – famed for their roles in Mr & Mr Smith - have decided to take divorce proceedings behind closed doors and use a ‘private judge’ to resolve their case.
While in Scotland we don’t have private judges – which have become more popular in the US in recent years as a means to handle private cases of wealthy clients – we do instead have a process that allows a separating couple to settle their disputes privately, and hopefully amicably, outside of the courts.
This new dispute resolution method is called arbitration – but sadly, it is not a process that is widely known in Scotland.
As a trained family arbitrator – and a member of the Family Law Arbitration Group Scotland which involves a collection of senior family lawyers who have trained as arbitrators – I am keen to start to reverse this knowledge gap and introduce the benefits of arbitration to more people.
I’m convinced that couples are not taking their case to arbitration simply because they don’t know about it; or understand how it works.
Pleasingly, it is a pretty straight-forward process and one that couples – especially those being wracked by wrangles over money/property/children – can find hugely effective if it is used.
When a relationship breaks down people need to find a way to untangle their lives, or at least manage their on-going, separated relationship. Whether it’s a husband and wife separating; a divorced couple no longer being able to agree on the financial arrangements for support for their children; cohabiting couples who don’t want to live together, but both want to stay in the house they own; parents not being able to agree where their child should live, finding a resolution can be hard.
Yes, sometimes individuals can find a resolution themselves; sometimes they need the assistance of a third party like a mediator to help them.
Sometimes, however, the individuals simply cannot agree matters between them and they need to hand the decision making process over to a third party. Conventionally, that involved the individuals using their own lawyers to negotiate matters before going through the costly, time-consuming and inflexible court process.
Arbitration offers an alternative.
Just to be clear, a couple would still have to go through a court to actually get a divorce, but using someone like me to arbitrate their case would allow their disputes – whatever they are – to be resolved in advance and in private, rather than go through the courts.
For example, arbitration can be used if there is one discrete point that has to be resolved but cannot be agreed - eg where should a child go to school; what is the date of separation?
Both parties would look to submit to the jurisdiction of the arbitrator and agree that his/her decision will be binding. This means that they can effectively choose their ‘judge’, choose the manner and speed at which matters can be addressed and keep everything private.
And while Brad and Angelina will have their own reasons for keeping their divorce private, I’d recommend any couple to think of how arbitration can offer a means to help them work through a painful break-up.
Want to know more about arbitration? Gibson Kerr specialises in family law, divorce, separation, child contact and residence, prenuptial agreements and separation agreements.
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