Divorce & Separation Arbitration

Family Law Arbitrators in Scotland are accredited by the Law Society of Scotland as specialists in family law or are experienced family law advocates who have undergone specialist arbitration training organised by the Family Law Arbitration Group Scotland (FLAGS). Like a Sheriff or a Judge, the arbitrator decides a case on the basis of the evidence presented by the parties or their solicitors. Proceedings can be quite formal with evidence being given on oath but there is also scope for less formal arrangements, particularly when an arbitrator is being asked to decide on a single issue.

Unlike the court, arbitration is a private process. The public have no right of access and proceedings are not reported. This can be important, particularly if public figures are involved. Frequently, parties are able to reach agreement through negotiation on the vast majority of issues following a separation and the matters remaining in dispute, although legally quite complex, may be reasonably easy to put forward as an argument. A court may be unable to make a determination without the parties embarking on a defended divorce action whereas an arbitrator can decide on only the issue in dispute, with the decision then being binding on the parties.

Arbitration is a much speedier process than going to court. The parties choose who they wish to appoint as arbitrator and determine the timescale for the process. Depending on the complexity of the issues involved, the arbitration may be completed within a few weeks and even complex arbitration should not take more than a few months to be completed.

On agreeing to go to arbitration, the parties’ solicitors agree the Family Law Arbitration Group Scotland (FLAGS) arbitrator to be appointed. The parties in conjunction with their solicitors and the arbitrator agree the terms of the Arbitration Agreement that is then signed by the parties. The agreement sets out what the issues to be arbitrated upon are and how the arbitration is to proceed. In some cases there will be written submissions on the legal issues involved. In others there will be evidence led with parties and witnesses being subjected to cross examination as in a court. Once the arbitrator has heard all the evidence and submissions, they will issue their decision, which will then be enforceable in law.

There is limited scope for an appeal to the Court of Session of an arbitrator's decision on a point of law. Otherwise, the arbitration decision is final. It is unlikely that you would go to court.