Arbitration v court process

Year Published: 2022

Arbitration is an out of court process used by separating families and their legal representatives which involves an arbitrator adopting the role of a judge.  The parties first have to agree the identity of the arbitrator to be instructed and the scope of the issues to be decided by the arbitrator.  The arbitrator will then circulate a quote, usually a fixed fee, for their services.  If there is any disagreement about the identity of the arbitrator to be instructed the parties can elect for The Institute of Family Law Arbitrators to select one for them.  There are separate panels for arbitrators who deal with finance or children matters.

To proceed with arbitration, both parties must agree that they are willing to proceed in this way and they must sign a document which sets out the rules of arbitration.  By signing the document, the parties are agreeing to be bound by the arbitrator’s final decision.  It is therefore important that the parties are 100% committed to this process of resolving their dispute as it is not possible to subsequently decide that they do not want to arbitrate.  To end arbitration without a decision from the arbitrator, the other party must also agree to terminate the process.

Sometime arbitration and court proceedings run concurrently.  If a spouse has issued an application for a financial remedy order (Form A) those proceedings can be put on hold to await the outcome of the arbitrator’s decision.

When conducting arbitration, an arbitrator is required to apply the law of England and Wales and the arbitrator’s final decision is binding on both parties. This is known as the Award on financial matters or Determination on children matters. The decision can then be embodied into a financial remedy order or child arrangements order which can be sent to the family court to be approved by a judge.

There are many benefits to arbitration in comparison to the traditional court process.  These are summarised below

 

  • Speedier

There are no automatic time limits as would be imposed by the court on an application for a financial remedy order, and no delay which is prevalent in today’s family court with dire backlogs and court waiting lists. A particular issue could be resolved in weeks through arbitration as opposed to months if following the traditional court process.

  • Confidentiality

All issues decided in arbitration remain confidential unless appealed.

  • Flexible

The arbitrator is bound to apply the law of England and Wales but everything else can be agreed in line with the arbitrator such as when and in what format documents should be filed, and where and when matters should be decided.

  • Choice of arbitrator

It is possible to choose your arbitrator whereas you would not have the option to choose your judge if an application is issued in the family court.

  • Cost effective

Whilst the arbitrator will charge for their service, the fact that the process is speedier means that there will be no requirement to update financial disclosure or obtain updated valuations in time for a court hearing, which often comes at an additional cost.

  • More comfortable environment

Meetings with arbitrators often take place at solicitors’ offices or barristers’ chambers which make for more comfortable environments than the court waiting area, conference room (if you’re lucky enough to secure one in a court building) and courtroom which some people find intimidating.

  • Better service and better award

Many judges have multiple cases in their list and are undoubtedly swamped at times.  An arbitrator can allocate more time to prepare for a particular case and therefore have a better understanding of the issues in a case which enables them to make a fairer award.  Using other methods of alternative dispute resolution can help free up judges’ time to deal with more complex legal arguments which arbitrators are unable to deal with.

  • Expertise

An arbitrator will be a family practitioner (solicitor or barrister who deals with family law cases day in, day out and has undertaken specialist training in arbitration).  Some judges will not have necessarily practised family law prior to sitting as a judge.  Interestingly an arbitrator has the same ability to make the decisions of a high court judge.

 

If you are interested in resolving any family law issue using an out of court process please contact Claire Porter on 01244 305926 or [email protected]

 

 

 

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