Arbitration in Family Law Cases

I have recently concluded a financial dispute arising from a divorce using Arbitration as an alternative to a Court final hearing. As a solicitor who has been dismayed to see clients embroiled in unnecessarily lengthy, costly and protracted Court proceedings, I found the whole process somewhat enlightening.

What is arbitration?

Arbitration is a form of alternative dispute resolution which is another option for separating couples to consider as an alternative to Court.  In family arbitration the parties appoint an arbitrator, who will make a decision that will be final and legally binding between the parties.  Arbitrators can make a decision on some child-related issues arising from relationship breakdown and financial or property disputes.

Why choose to arbitrate?

Family arbitration enables couples experiencing family breakdown to resolve disputes more quickly, confidentially and in a more flexible and less formal setting than a courtroom. With the current delays experienced by parties in most family courts across England and Wales, the appeal of a quicker way to resolve family disputes is undeniable.

At present, we are seeing cases take up to 4-6 months to even get to a first appointment (initial hearing) in the financial part of divorce cases and final hearings that require a full day or more of Court time can wait months. The family courts are so stretched in some areas that all financial final hearings are listed "at risk". This means that if a public law children case (where social services are involved) requires the Judge's time, the financial case can be removed from the Court list and adjourned to a later date. This can happen as close as 48 hours before the hearing, by which time the costs of preparation have been incurred.  To many people, these wasted costs are simply unaffordable.

Initially it can look as though the cost of the arbitrator itself is an expensive addition to the legal fees people are already committed to, but the fact that you will get a final decision much more quickly will generally make arbitration much more cost-effective overall.

Unlike in Court proceedings where you can find yourself before a different Judge for each hearing, the same arbitrator can deal with all stages of the case from start to finish. This continuity provides reassurance for the parties that the person making the decisions in their case has a real understanding of their situation.

While all Judges are extensively trained and qualified, some Judges that hear family cases will often have backgrounds in other areas of the law and perhaps not have a great deal of specific family law experience. Family arbitrators are generally all experts in family law with extensive family law experience. Most family arbitrators are passionate family law solicitors or barristers themselves.

Additionally the parties can have much greater input into how the proceedings are run. This can include, choosing the venue or whether to meet face to face or in writing only.

One huge benefit is that the parties can use the arbitrator for the whole process or just parts of it that they are stuck on. This can also save great expense.

Is it right for me?

There are some situations where arbitration might not be suitable, for example if you need to get evidence from third parties or there is a risk that the other party might try to hide assets, but arbitration is a genuine alternative to going to court for many family cases.

A solicitor can advise about the process of arbitration and whether your dispute is suitable for arbitration. Once this route is agreed by all parties, your solicitor can help to select the right arbitrator for your case and negotiate the arbitrator's fees. In order to proceed the parties must sign up to an arbitration agreement (ARB1 form) and part of that form requires each party to confirm they have been advised about implications and effect of the arbitration process.

Arbitration has some similarities with court proceedings and being represented by a solicitor will generally be the most effective way to present a case and the appropriate legal arguments. This is where Family Law Group can help.