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Arbitration of family & separation issues

Published date: JuNE 2015
Author: Liezl Steenkamp
Another important issue of concern is that in most instances the judges who are appointed to adjudicate over these matters, do not possess the necessary skills and knowledge as well as experience to make well informed decisions.

The author mentions that some of the appointed judges are judges who mainly practice in other areas of law and not family. The author also raises a crucial point in that in some family matters, where there is more than one issue present in a matter, such as divorce, maintenance and minor children; each matter is accordingly allocated to different courts and different judges which also contributes to the cost and time spent on the matter.

The author lists a number of advantages that arbitrating in family law has. These include: parties can select the person whom they wish to arbitrate their dispute, one with experience and expertise in family law matters. Parties can appoint one arbitrator in the matter to deal with the dispute from start to finish resulting in continuity and an informed and holistic approach by the arbitrator to all different issues that may arise from a dispute. Parties retain control of the proceedings by deciding when, where and how the issues are to be dealt with by the arbitrator. Hearings can be scheduled at any time of day that suits the parties and at an easily accessible venue. These proceedings are private and confidential, the choice of venue means that there is no possibility of media access and parties do not have to worry about exposing their disputes, faults and finances to the public gaze. Although arbitration is less costly, it has additional costs such as arbitrators fees, hiring of a venue and cost of transcription service if it is required.

The author makes reference to Canada and some States in the United States that make provision for the referral of all matters which are incidental to divorce or family breakdowns including children’s issues to arbitration. The author agrees with this approach and suggests that clause 5(1) as contained in the Draft bill, which proposes to permit family law arbitration in respect of property is therefor too narrow as it will effectively limit family arbitration to childless couples or couples whose children are majors. The author states that this clause should be extended to include arbitration in children issues due to the reluctance of the High Courts to interfere with parental rights and responsibilities. He goes on to say that parents should be allowed to agree on an arbitrator who is well versed in family law and childrens matters.

It is seen that there is a need for arbitration to be an accepted and recognised method to resolve family law issues. It will relieve the pressure on the overloaded court system and will result in more informed decisions made by arbitrators who are better knowledged and experienced. The author suggests that the arbitrator does not necessarily have to be limited to experienced family law practitioners. It could be someone with specialised technical knowledge in the area of the dispute such as a psychologist. The parties can retain attorneys and advocates throughout the proceedings for advice, preparatory work and representation at hearings.