The Family Court is under immense pressure. The number of court applications, including issues relating to finances on divorce or separation of an unmarried couple and arrangements for children are rising each year. Cases are taking longer to conclude and very often experiencing delays in listing hearings and, as is happening more frequently, hearings are being moved or even cancelled at short notice due to judicial unavailability.
It is easy to assume, when a relationship breaks down, that Court is the only option for a family dispute to be resolved. Historically, that may very well have been true and in some cases even now it will be the only option for a family. However, there are non-court options for resolving family disputes.
We have recently, in support of Family Mediation Week, provided information about mediation which is one of the non-court dispute resolution options. Arbitration is another, and this insight will provide information about this under-utilised process for family disputes.
What is Arbitration?
Arbitration is in some ways similar to the court process. It is however completely private and voluntary. All parties to a dispute must agree to arbitration, and enter into an agreement under which a qualified, neutral person (arbitrator) is appointed to reach a decision for the parties where they have been unable to do so.
Arbitration can be used to resolved disputes about children, for example where they should live and how often they should see each parent, even more discreet issues such as where a child should go to school. It is also an option for resolving financial disputes between separating/divorcing couples.
The arbitrator will make a final decision after considering the evidence. In children cases, the decision is called a “determination” and in financial cases it is called an “award”.
Arbitration can be used as a standalone process or alongside a court case, for example where there might have been (or there is expected to be) a significant delay.
How does arbitration work?
As stated above, the parties enter into an agreement to arbitrate and when doing so agree the arbitrator they want to appoint. The arbitrator must be suitably qualified. Arbitrators will be family law professionals, for example former or part-time judges, solicitors, chartered legal executives and barristers with at least 10 years’ post-qualification experience in family work. A referral is made to the Institute of Family Law Arbitrators, an arbitrator is nominated and the process begins. There will generally be a case management conference at an agreed venue or by phone, with the arbitrator making further procedural decision throughout the process eg evidence to be provided by the parties or third parties such as independent experts – generally by agreement with the parties.
A final meeting (hearing) will take place on an agreed date at an agreed venue following which the arbitrator will issue their written decision.
If the decision is a financial award, this can be incorporated into a financial order in divorce proceedings. If it is a children determination, unless the parties are already involved in Court proceedings, the determination will usually be the final step for the parties.
What are the pros and cons?
These lists are non-exhaustive:
Pros:
- The parties select their own decision maker from a family arbitration panel. The decision maker will therefore be continuous in the case until conclusion.
- The speed of the process – decisions can be reached much more quickly than via the Court route.
- The Arbitrator can dedicate more time to the case. Judges in court have many cases before them on any given day, often leaving little time to review all the necessary paperwork in advance. This will allow for a more considered final decision.
- The process is flexible and confidential, whereas the court process is fairly rigid in the way it runs. There is a move towards more transparency, with press being able to attend, and reported cases in the Family Court (subject to safeguards around names and other such information).
- There can also be costs savings. This links back to a speedier process, with the parties in a lot of instances needing to engage their own lawyers for a shorter time.
- The decision of the arbitrator is binding on the parties, provided the award or determination is within the parameters that would be awarded by the Court (and is subject to the Court’s approval).
Cons:
- The arbitrator is paid for their time. Whereas in court proceedings, the parties do not have to pay the judge to be there to make a decision for them.
- There is still a lot of preparation work involved, and a lot of the same steps required in court proceedings will need to be followed (although more flexibly).
- Arbitration isn’t suitable in every case. Where there may be issues of domestic abuse or, for example, repeated or serious non-disclosure e.g. of finances, arbitration is unlikely to be appropriate in such cases.
- The parties must all agree, and therefore if one does not, arbitration will not be possible.
How Tozers can help
We can discuss with you whether Arbitration, or another form of non-court dispute resolution, is likely to be appropriate in your particular case.
