Family law arbitration: Balancing fairness, privacy and efficiency

In Scotland, arbitration is one of several Alternative Dispute Resolution (ADR) options available alongside mediation and collaboration.

Arbitration is a process in which the parties agree to appoint an independent, suitably qualified third-party, known as an arbitrator, to decide the dispute for them. The arbitrator’s decision carries the same weight as a court order and is enforceable.

When might Arbitration be appropriate in a family law context?

 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 is the option of agreeing to proceed to arbitration instead. The types of cases which can be arbitrated are for example (but not limited to): –

• Where there are financial issues between separating partners/spouses which they wish to resolve privately, quickly and with a specialist. For example, determining the value of an asset, or what is the relevant date of separation.
• Where there are child-related issues and the parties want a bespoke, specialist decision-maker who is experienced in dealing with such matters.
• Where the parties value confidentiality, flexibility, speed and perhaps have more control over the costs involved in the process as opposed to litigation.

What is the process? 

1. Agreement to arbitrate
   • The parties (and their solicitors) agree that the dispute (or parts of it) will be referred to arbitration.
   • Importantly, because it is voluntary, both sides must consent. You cannot force someone into arbitration unless there is prior agreement.
2. Selecting the arbitrator
   • The parties jointly select an arbitrator (often a specialist family law solicitor or advocate). The Family Law Arbitration Group Scotland (FLAGS) website allows for searching for arbitrators by region.
   • Agree the arbitrator’s fee and the process/timetable for initial papers.
3. Preparation and hearing
   • An “Agreement to Arbitrate” is drawn up which sets out the scope (i.e. what issues will be determined) and the rules to apply.
   • Each party prepares their case: evidence, written submissions, witness statements (if applicable), and perhaps expert reports (e.g. financial, child welfare).
   • There may be case management hearings during which the arbitrator may issue directions for timetable, documents, witness attendance/availability and whether a hearing will take place either virtually or in person.
   • A final hearing will be held where both parties present their case to the arbitrator. It is less formal than a court but still adversarial.
4. Award/Decision
   • After the final hearing (or sometimes after the arbitrator has considered written submissions – if that was the process agreed), the arbitrator issues a binding decision (an “award”).
   • The award can then be implemented as appropriate.

What are the benefits of Arbitration? 

• Choice of expert decision-maker: Parties can choose an arbitrator with specific family law experience rather than being allocated a generic judge/sheriff. There is therefore a tailored approach.
• Flexibility / speed: The timetable can be set by agreement, the hearing venue and timing arranged to suit both parties, and the process can bypass some of the formal court delays.
• Confidentiality: Unlike court hearings which are mostly public, arbitration proceedings in Scotland are held in private. This added layer of discretion can shield the parties and witnesses from potential unwanted exposure and reduce conflict.
• Potential cost-saving: Because the process is more streamlined and private, it may reduce legal costs (especially for complex but narrow issues). For parties wishing to avoid a full court battle, this can be attractive.
• Control: The parties can agree the scope of arbitration (what issues are referred), select the arbitrator, define timetable and procedure — giving them more control than going to court where much is prescribed by statute and rules.

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.