By Geeta Patel, Senior Legal Executive
As the landscape of family law evolves, the role of ‘private judges’, and family arbitrators is becoming increasingly prominent.
This shift is driven by the need for more efficient and flexible dispute resolution mechanisms compared to traditional court processes, especially in the realm of financial remedies following divorce.
The recent Law Commission scoping report on financial remedies highlights the burgeoning role of arbitration and the unique advantages it offers in the complex arena of family law.
What is a ‘private judge’?
In England, private judges in family law are typically experienced lawyers or retired judges and they can sit in the role of a judge in a private procedure or having obtained certain qualifications, they can act as family arbitrators.
They adjudicate financial disputes that arise during divorces, much like traditional family court judges.
Unlike court judges however, arbitrators and private judges can be chosen by the disputing parties, offering a more personalised and direct approach to resolving legal conflicts.
Advantages of choosing a private judge
There are several distinct benefits of choosing to use a private judge to adjudicate on your behalf:
- Choice and consistency – The primary advantage of a private process is the ability to select the judge or arbitrator. This choice can lead to a more consistent approach throughout the process, as opposed to the variability encountered in the family courts, where cases may be handled by different judges over time.
- Speed and convenience – Arbitration, if used, is typically faster than court proceedings. Parties can schedule sessions according to their convenience, which is particularly beneficial when multiple sessions are needed. This speed is a crucial advantage given the current strains on the family court system, which often lead to extended delays.
- Focus and flexibility – Arbitrators can be tasked with resolving specific issues that may be contentious, even if other aspects of the separation have been settled through mediation. This focus can prevent the need for more extensive court processes and allows for tailored dispute resolution.
- Expertise and privacy – Arbitrators often have specialised knowledge in financial matters and can handle complex arrangements more adeptly than some court judges. Additionally, arbitration proceedings are private, keeping sensitive family matters away from the public eye.
You should be aware that arbitration is not necessarily a cheaper option. Both spouses will be responsible for covering the costs of appointing an arbitrator, as well as meeting the costs of their own independent legal team.
These costs aren’t insignificant, but the benefits of shorter timescales and a more focused approach can help to reduce costs in the long term when compared to traditional court cases.
It is also important to note that an arrangement reached by arbitration is still subject to appeal. When an arbitral award is made it is normally embodied into a court order. Whilst courts typically uphold arbitral awards, they do allow appeals to be launched on the same grounds as family court judgments.
The future of arbitration in family law
The Law Commission’s report at the end of 2024 reflects a growing recognition of the need for a fairer, more predictable framework for resolving family law disputes, which the appointment of a private judge or arbitrator may offer.
As the courts continue to face backlogs and delays and with no confirmed reforms on the horizon, arbitration or the use of a private judge presents a viable alternative that could offer more certainty and reduce the adversarial nature of divorce proceedings.
The increasing popularity of arbitration in handling both financial and children-related disputes illustrate a broader shift towards privatised justice in family law.
This trend is likely to continue as couples seek out efficient, expert-led, and confidential ways to resolve their legal issues.
As we move forward, the role of private judges in family law seems likely to expand, offering a blend of traditional judicial oversight and modern, flexible dispute resolution tailored to the needs of families.
If you would like to discuss how a private judge can assist you or how arbitration could be used in relation to your divorce or separation, please speak to our Senior Chartered Legal Executive, Geeta Patel for guidance by emailing geeta.patel@mackrell.com or call 0203 975 1081
