Shaun George

Family law arbitration has, to date, struggled to gain traction as a dispute resolution option given the very effective specialist family law courts in some sheriffdoms and an excellent and well-managed family law court in the Outer House of the Court of Session.

However, in the current COVID-19 crisis access to these courts has been severely curtailed. The courts are simply not able to convene to make decisions in cases except those of the utmost urgency. When the current social distancing measures are lifted, there will inevitably be a huge backlog of cases awaiting judicial determination. In the meantime, there are families across Scotland whose disputes ought not to wait.

A range of aspects of family life that may not be categorised as of the “utmost urgency” nonetheless require to be resolved. Family life cannot be put on hold indefinitely for the current crisis to pass. There is an easily accessible process which is well-equipped to help and that is FLAGS Arbitration. It is now, whilst our more usual channels of dispute resolution are less accessible, that consideration should be given by family lawyers to seeking a determination by an experienced family law practitioner trained as a FLAGS arbitrator.

FLAGS (Family Law Arbitration Group Scotland) is the organisation that promotes family law arbitration in Scotland. Its members are all experienced family lawyers, either solicitors accredited as family law specialists by the Law Society of Scotland or advocates recognised as having a long-standing practice at the bar in family cases (a minimum of 10 years). FLAGS has developed its own set of tailor-made rules designed to meet the particular needs of family law cases. A FLAGS arbitrator is an independent decision-maker who will determine the case, or any particular aspect of it, (with the exception of the granting of decree of divorce) and who will provide an enforceable judgement.

One of the unique (and in these times vital) aspects of FLAGS arbitration is the ability of the process to be tailored to the individual circumstances of the parties and their representatives. Arbitrations can be convened remotely, whether by Microsoft Teams, Skype or other such alternate system or undertaken based on written submissions which can be emailed to the FLAGS arbitrator.

The flexibility of FLAGS arbitration allows for the agents for the parties to agree with the arbitrator the manner in which evidence is to be presented. There would be no need for personal appearance, allowing compliance with the government guidance to stay inside and maintain social distance. This is an immediate solution that is available and “open” to help families trapped by the current restrictions placed upon the courts. It has the added benefit of confidentiality and certainty in terms of timings and cost.

Shaun George is a partner at Brodies LLP