Backlogs in the family law system mean finalising your divorce through the courts can be a lengthy process. Pressure on judges and court staff inject an element of unpredictability to many cases, with hearings being postponed for long periods with little notice. The frustration felt by many divorcing couples as a result leads many to opt for arbitration over litigation – essentially this means engaging a private arbitrator (usually a retired judge, experienced solicitor or QC) to decide financial and other matters instead of asking the courts to do so). The series of lockdowns as a result of Covid19 resulted in a significant uptick in people choosing arbitration over litigation.

Here we look at how family arbitration works, and we compare it to more traditional divorce court hearings. While it’s not a requirement to engage a solicitor for family arbitration, the procedure closely resembles a court hearing and the decision or ‘award’ is binding. So if there are complex matters to resolve or significant assets at stake it is certainly worth instructing an experienced family law solicitor to advise you on the arbitration and help you prepare as strong a case as possible.

What Is Family Arbitration?

Arbitration is a form of alternative dispute resolution that has traditionally been used to resolve commercial disputes. The Family Law Arbitration Scheme was introduced in 2012 to enable those going through divorce to engage a private judge (an arbitrator) to resolve financial matters and issues regarding children.

In family arbitration parties have the power to choose their own arbitrator. He or she will consider evidence, listen to each side’s case and adjudicate on all relevant issues. A decision (called an ‘award’) will then be reached. It’s possible to embark on mediation at the same time on specific issues. However, unlike mediation where the parties must come to an agreement between themselves, the arbitrator imposes his or her award on the parties, and they are bound by it. In this respect arbitration is similar to family court proceedings.

Before arbitration begins, both sides must expressly agree that they will be bound by the arbitration rules so it is important to get specialist legal advice on the nature of the arbitration scheme. Arbitration is a flexible process, and an experienced family lawyer may be able to ensure that the arbitration process is tailored to your specific requirements.

Why Should I Choose Arbitration Over Court Proceedings?

Here are some of the benefits of arbitration as we see it:

  • Speed – If you and your spouse are contesting financial matters and issues around your children, arbitration is likely to be quicker than court hearings, particularly in light of backlogs in the system and cuts to legal aid in family law proceedings
  • Ownership of the process – The parties are free to choose the arbitrator who will decide their case, and they can rely on their divorce solicitor to recommend appropriate professionals. You can also tailor the standard arbitration procedure to your own specific requirements
  • Expert arbitrators – Unlike some family court judges, the arbitrator you appoint will normally have financial expertise and understand complex child arrangements. This means cases are disposed of efficiently and cost-effectively
  • Privacy – Arbitration is held in strict confidence without any media access
  • Solicitor involvement – You can still retain your solicitor to advise and guide you through the process
  • Costs – Arbitration is not a cheap option. You and your spouse are responsible for meeting the cost of the arbitrator, and these can be considerable. However the ability to run the arbitration according to your own timescale and isolate key areas of conflict can make the process more economical than going to court
  • Right of appeal Courts will uphold arbitral awards but the will also allow appeals on grounds similar to appeals of family court judgments. We looked at this issue previously in the 2020 case of Haley v Haley.

Of course, arbitration is not suitable in every case. We’ve mentioned that the costs of the arbitrator are met by the parties and these are considerably more than court fees payable when using the family court system. In addition if one side does not fully commit to the arbitration process he or she can effectively sty the process and delay it so that many of the advantages of arbitration are undermined.

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To discuss how Brookman can assist you with family arbitration   please call us on 44 (0) 20 7430 8470 or contact us online. We provide a free, initial consultation.

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