Arbitration entered the world of Family law in 2012 (finances) and 2016 (children). It is a process available to parties who are unable to reach an agreement.
This is an option for resolving disputes that could and should be considered at all stages of a case. It can be utilised for decisions on discrete points that may be blocking resolution of issues in mediation or are holding up a negotiated agreement through solicitors.
Arbitration differs from mediation in that the decision making is taken out of the hands of the parties and given to the arbitrator.
Like mediation, taking part in arbitration is voluntary. However, once the agreement to arbitrate is signed up to and both parties having agreed to arbitration they are bound by that decision.
Parties can either retain their legal team during the arbitration or represent themselves.
A benefit of arbitration is its flexibility. As mentioned above, arbitration is suitable for both discrete issues (e.g. should one party receive maintenance for a limited period or for life), and for making decisions on all matters arising from the breakdown of the relationship.
The parties can decide whether they would like a live hearing in front of the arbitrator with the arbitrator hearing evidence or whether the matter can be dealt with on the papers, the parties (or their lawyers if instructed) agreeing what is to be sent to the arbitrator.
Arbitration is likely to be quicker than the court process and with very few exceptions the decision of the arbitrator is final. If the arbitration is on financial matters arising from the breakdown of marriage or civil partnership it will be necessary for a consent order to be sent to the court.
All documents produced in the arbitration are confidential and can only be disclosed outside the arbitration by agreement of the parties or if compelled to do so by law.
A further advantage of arbitration is that the parties may choose the arbitrator. In the court process, you do not get to choose the judge. In addition, where there may be more than one hearing, it is very likely that there will be a different judge on each occasion.
The advantages of arbitration can be summarised as follows:
- The parties can choose the arbitrator
- There is unlikely to be a long delay in the matter being heard
- The process is tailor made to the parties’ unique circumstances
- The time and place of any hearing can, within reason be at the parties’ convenience
- The parties decide what they are agreed about (if anything) and what they are asking the arbitrator to make decisions about
- The proceedings are confidential
How does it work
The first step is for the parties to agree the identity of the arbitrator
Next, complete the necessary paperwork
The parties decide whether they would like the matter to be dealt with on paper or by way of a live hearing.
The arbitrator may suggest a case management appointment (this can be done by phone or face to face)
If the matter is to be dealt with by way of hearing a date will be fixed. The tasks to be undertaken between the case management appointment and the hearing will vary depending on whether the matter is financial or a children matter.
Following the hearing the arbitrator will prepare an award and if necessary this will be incorporated into a court order.
Frequently asked questions about arbitration
- Where do I find an arbitrator?
A full list of arbitrators is contained on the Institute of Family Law Arbitrators (“IFLA”) http://ifla.org.uk/
- Who chooses the arbitrator?
Usually one party will propose three names and the other will select one, although if agreement cannot be reached the IFLA can be asked to make the selection
- Can I keep my legal team during the arbitration process?
Yes. They can represent you in the arbitration if you wish.
- Can arbitration be used to decide a discrete issue?
Yes. Arbitration is perfect for this type of scenario. The arbitrator can be asked to deal with the issue either on the papers or at a live hearing.
- Can we use arbitration if we are in court proceedings?
Yes. The judge is required to consider whether the matter should be adjourned to allow arbitration (or other form of dispute resolution) to take place. If you decide to arbitrate then the court will stay i.e. suspend the court proceedings until the outcome of the arbitration. The arbitration award can be incorporated into an order to be presented to the court.
Please contact Margaret Kelly our arbitrator for more information firstname.lastname@example.org tel 020 3709 8983.