Arbitration is a fairly new process in family law. Following diligent research and development to make it fit for purpose in family matters, it became available for financial matters in 2012 and children matters in 2016. Arbitration is suitable for most financial matters and most matters in connection with children. There are some matters which fall outside the scope of an arbitrator’s power and we can advise you on that scope.
Arbitration differs from the other forms of dispute resolution such as mediation or negotiation (which you can find information on here). In arbitration, the parties do not reach their own agreement and a decision is made by the arbitrator who considers the evidence. Arbitration is, therefore, akin to the judicial process but is conducted in a private setting and has many advantages for parties.
The parties should be aware from the outset that once they sign up for arbitration, they are bound to the process and by any decision made by the arbitrator. The positive aspect of this is that from the outset, the parties know that at the end of the process they will have a final decision and be able to move on with their lives.
The arbitration process
Arbitration can be used to determine a limited number of issues in dispute, or the overall outcome in a matter. Once the parties have decided to enter into the arbitral process it is necessary for them to identify an arbitrator to deal with their case.
The next step is for the parties to complete forms, including an arbitration agreement, formally entering into the arbitration process.
Once an arbitrator has been appointed and accepted the appointment, there is normally a pre-commitment meeting. This takes place either on the telephone, remotely or in person when the arbitrator explores with the parties (and their solicitors, if solicitors are instructed) what the scope of the arbitration is. The next step is usually a directions appointment where the arbitrator sets out what needs to be done to ready the case for a hearing.
If, whilst preparing for the hearing, there is a disagreement between the parties, for example on the identity of an expert or the contents of the letter of instruction to a jointly appointed expert, they can ask the arbitrator to make a decision having considered the matter.
If there is to be a live final hearing, the parties attend with their lawyers (if lawyers are instructed). Once the arbitrator has heard both parties and considered the evidence, he or she will make an award in the case of financial matter and a determination in a children matter.
The parties normally bear the cost of the arbitration equally, but different arrangements can be arrived at by agreement.
The benefits of arbitration
The arbitration process is much faster than the court process and the timing of hearings can be tailored to suit the parties.
The parties are guaranteed continuity of arbitrator. With the best will in the world, the courts are unable to guarantee that you will have the same judge throughout for your case.
The process is somewhat more flexible and informal than the court process.
The arbitrator can deal with the case with a live hearing or on the papers, meaning the arbitrator is provided written submissions and documentary evidence and will read that material to come to a decision.
The parties agree the scope of the arbitration and what issues they would like the arbitrator to make a decision on. Arbitration is ideal for a situation where the parties are agreed about many things but need a decision about a discrete matter to enable them to finalise their overall agreement.
The family courts have given their support to decisions made in the arbitral arena and where necessary these decisions (awards in financial matters and determinations in children matters) can be converted into consent orders quickly.
Arbitration is confidential and this is often an important aspect for people in the public eye.
Arbitrators come from a wide range of experienced family lawyers including solicitors, barristers retired and part-time judges.
This decision will be binding on the parties. There are very limited avenues to appeal from an arbitrator’s award / determination.
If you would like more information about arbitration or think it might be suitable for you, please telephone on 020 7436 6767 or email our arbitrator, Margaret Kelly on firstname.lastname@example.org.