Arbitration is a way of resolving disputes outside of court in a fast, flexible and cost effective manner. Arbitration for family law cases can be used to resolve disputes surrounding finances and children. If you would like to settle your divorce outside of court, arbitration can be a cost effective option.
To book an initial consultation with our expert family arbitration solicitors in London, simply call 020 3709 8975 or complete our online enquiry form.
Introduction To Family Arbitration
A bitter break up can lead to feelings of anger, resentment and shame. It can cloud how you approach new relationships. Also, it can impact how you view or value your continuing relationship with your spouse/civil partner, particularly when you have children together and need to continue to function as parents and ongoing role models for your children. There is no such thing as a ‘good divorce’ and while ‘conscious uncoupling’ may sound very progressive and enlightened, the fact is that whenever a relationship comes to an end, whether or not it is declared to be ‘mutual’, there will be hurt feelings.
That is not to say that a separating/separated couple can’t remain friends, but a lot will depend on the outcome of the divorce/dissolution/separation (the continuing care of the children, financial provision by one to the other if appropriate and the division of capital assets and property).
Reaching a financial settlement will depend largely on what your relationship with your spouse/civil partner is and how complex your respective financial affairs are. You may be dealing with assets held abroad, inherited wealth, complicated pensions and business structures, assets held in trust from which the family spending is paid and even the existence of pre or post-nuptial agreements.
Further, one party may be in ill health and unable to work which would bring into sharp focus the possibility of the other possibly needing to consider paying maintenance to them for life in lieu of a substantial capital settlement to provide for housing and living costs.
If the intention of the separating couple is to resolve matters quickly and amicably, they may initially attempt to agree to matters directly, but the more complex their finances the less likely they would be able to resolve matters themselves. Arbitration is just one of a number of out of court settlement options available to the couple.
What is Family Arbitration?
Arbitration has existed in some shape or form for deciding commercial disputes since the middle ages. Commercial arbitrations were first made the subject of a code of law by the Arbitration Act 1889.
Family Arbitration is a non-court based way for separated/separating couples to resolve disputes about finances and/or their children. Arbitration entered the world of Family law in 2012 (in respect of financial disputes) and 2016 (in respect of arrangements for children). It is a process available to parties who are unable to reach an agreement, but who do not want to enter the more adversarial court process.
Arbitration 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.
In Family Arbitration, the first step is for the couple to choose an independent arbitrator (a retired judge, a QC or senior barrister or a solicitor) to resolve disputes about finances or children. They can also choose the venue for the arbitration hearing and times and dates that suit them. The arbitrator is paid by the parties for his or her time.
The parties will agree to engage a neutral third party arbiter (the Family Arbitrator) to make a binding determination on an issue of dispute between them. They must be clear as to what the issue is and can set the parameters for the arbitration eg where the parties have agreed that maintenance should be paid, the arbitrator can be asked to determine the amount and length of such maintenance. The parties will agree in advance that the arbitrator’s decision will be binding.
The parties and their solicitors may choose to ask the arbitrator to simply consider written arguments/submissions and supporting documentation only and not to hear directly from the parties, in which case the arbitrator’s decision will be made once the arbitrator has considered the papers and a written judgement will then be provided. Alternatively, all parties may choose to schedule hearings so that the arbitrator gets to hear live evidence before making a determination.
To summarise the arbitration process:
1. The first step is for the parties to agree the identity of the arbitrator and his/her fees;
2. Next, the necessary paperwork/agreement to arbitrate must be completed;
3. The parties decide whether they would like the matter to be dealt with on paper or by way of a live hearing;
4. The arbitrator may suggest a case management appointment (which can be done by phone or face to face) in order to ‘meet’ the parties ahead of the hearing if there is to be one and to finalise disclosure directions or the submission of papers to the arbitrator;
5. 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 case involves finances or arrangements for children; and
6. Following the hearing the arbitrator will prepare an award and if necessary this will be incorporated into a court order.
Do Both Parties Have To Agree To Family Arbitration?
As Arbitration is a voluntary non-court based settlement option, the parties must be in agreement to use this process. The identified arbitrator will also need to agree that the matter is suitable for arbitration.
Can I refuse Family Arbitration?
Yes, Arbitration is voluntary. Because you cannot be compelled to use arbitration, you will have to expressly consent to the process and to the arbitrator who will be asked to determine the issue(s) in dispute. If you do not feel that arbitration would be right for you or for your case, you are under no obligation to agree to it and the court cannot order you to.
Who Initiates the Family Arbitration Process?
Either party or their solicitor can propose arbitration at any stage of the process, even after the commencement of formal court proceedings (which could by agreement be put on hold to allow time for the parties to pursue arbitration). Usually, if there is agreement to arbitrate, one of the solicitors will propose a few names of possible arbitrators and the other solicitor will select one, although if agreement cannot be reached the Institute of Family Law Arbitrators can be asked to make the selection. A joint approach is then made to the arbitrator to agree timings and fees.
What Are The Advantages of Family Arbitration?
Arbitration is voluntary. However, once the agreement to arbitrate is signed up to, both parties have agreed to arbitration and they are bound by the decision of the arbitrator.
The parties can continue to retain their legal team during the arbitration process (or they could choose to represent themselves).
A huge advantage of Arbitration is that the parties get to choose their ‘judge’ – the arbitrator – and also the date and time when the matter will be heard (unlike in the court process when the court lists the matter on a particular day before a potentially unknown/random judge – often some months ahead – without any input from the parties as to the listing and the hearing will take place between 10am and 4.30pm). Also, in the court process, where there may be more than one hearing, it is very likely that there will be a different judge on each occasion.
One important benefit of arbitration is its flexibility. As mentioned above, arbitration is suitable for both discrete issues and for making decisions on all matters arising from the breakdown of the relationship.
The parties can choose whether they would like to have a formal hearing in front of the arbitrator so that the arbitrator can hear evidence directly from them (and from any witnesses) or whether the matter should be dealt with ‘on the papers’, the parties (or their lawyers if instructed) agreeing what documents in this instance are 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 still be necessary however 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 it is likely to be a lot quicker than going to court.
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 proceedings are confidential
● The parties decide what they are agreed about (if anything) and what they are asking the arbitrator to make decisions about
Are There Disadvantages to Family Arbitration?
Arbitration differs from Mediation or the Collaborative Law process in that the decision making is taken out of the parties’ hands and handed to the arbitrator. It is difficult to appeal the decision of an arbitrator, unlike a decision of a judge at court.
Is Arbitration Better Than Court?
Arbitration is not better than court. It is different. There are many advantages as set out above, but it is not for everyone.
How Much Does Family Arbitration Cost?
If instructing one of our expert team to work with you alongside the Arbitration process, there is really no straightforward answer to this question, as a lot will depend on the issues to be addressed in arbitration (whether financial provision on separation for you and any children and/or arrangements for the ongoing care of the children) the nature and extent of the financial assets, whether a neutral third party will need to be engaged (eg to provide a report on pension sharing or the maximum mortgage capacity of each party), the number of hearings required or whether the case can be dealt with by way of written submissions only and the length of time it takes to conclude matters.
Broadly, to secure a final resolution through this process could cost between £8,000 and £15,000 plus vat. A more complex matter could cost up to and in some cases more than £15,000 plus vat. At an initial meeting, after discussing the nature and scope of your case, we would be able to give a more definitive idea of the potential overall costs.
Margaret Kelly of Josiah-Lake Gardiner is a qualified Arbitrator. Her fees for adjudicating matters will be £1,750 – £3,500 plus vat, depending on the nature and scope of the issue and whether or not a hearing will be required. Do contact Margaret for more information at firstname.lastname@example.org or on 020 3709 8983 for more information about her fees and availability.
How Long is The Process?
Depending on when the decision is made to go to arbitration, it may be as few as 5 – 8 months weeks from selecting/appointing an arbitrator to receiving the arbitral award. A lot depends on the nature and scope of the issue to be determined, whether witnesses or third party experts are required to assist, whether there will be a hearing or the matter simply determined ‘on the papers’ and the availability of the parties, their legal team and the arbitrator. What is undeniable though is that arbitration is considerably quicker than going down the court route.
What You Can Expect From Josiah-lake Gardiner
We, at Josiah-Lake Gardiner, will guide you through the arbitration process the making of the arbitral award. Our experienced team of solicitors will always endeavour to minimise the emotional distress of relationship breakdown on all members of the family, with particular emphasis on assisting clients to minimise as much as it is possible to do the emotional impact on any children of the family.
Our expert team will be by your side to guide, advise and assist you at every stage of the arbitration process. In this regard, we have for a number of years been named one of the UK’s leading Family Law firms by the independent legal guide The Legal 500. For more information or to book an appointment with one of our expert solicitors to discuss your particular circumstances, do contact us on 020 3709 8975.
Frequently Asked Questions About Arbitration
1. 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/
2. 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
3. Can I keep my legal team during the arbitration process?
Yes. They can represent you in the arbitration if you wish.
4. 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.
5. 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.