The advantages and disadvantages of arbitration

Arbitration has been available as a means of resolving family law issues out of court since 2012 for financial issues, and since 2016 for issues between parents concerning arrangements for their children.

The arbitration process essentially involves the parties appointing a trained arbitrator to decide the matter for them, and agreeing to be bound by the arbitrator’s decision.

Arbitration is an excellent way of resolving family law issues, but what exactly are its advantages and disadvantages, compared to resolving the matter via contested court proceedings?

Advantages of Arbitration

Arbitration has a number of advantages over court proceedings, including the following:

Arbitration puts the parties in control

Court proceedings are obviously controlled by the judge, including all aspects of how the case is conducted. Arbitration, however, puts the parties in control. For example, the parties can choose the timing and venue of an arbitration hearing, what issues are dealt with and when, and whether the process is conducted by document only, by telephone, or by face-to-face meetings. In short, the parties can tailor the arbitration to their particular needs and requirements.

Arbitration is quicker

Contested court proceedings can take a lot of time to be dealt with, particularly in these times when the courts are extremely busy. For example, cases between parents concerning arrangements for children are currently taking over 10 months on average to be dealt with by the courts. Arbitration should be very much quicker than that.

Arbitration is confidential

No one will want their private family affairs made public, but court proceedings are not necessarily private. Arbitration, on the other hand, is essentially confidential.

Arbitration is cheaper

Contested court proceedings can be phenomenally expensive. There are costs involved in arbitration, including the arbitrator’s fee and possibly the cost of hiring the venue where the arbitration takes place. However, those costs will usually be far less than the cost of contested court proceedings.

Disadvantages of Arbitration

Arbitration can be said to have some disadvantages, for example:

Ability to choose arbitrator can cause problems

When you go to court you obviously can’t choose the judge that will deal with your case, but when you go to arbitration the parties do choose who the arbitrator will be. This could lead to issues, with one party wanting to choose an arbitrator who they believe will be more favourable to them, and the parties being unable to agree upon an arbitrator.

Need to get a court order

Arbitration doesn’t necessarily mean that the parties will avoid the court entirely. They may still need to go to court to get the arbitrator’s decision made into a court order, to ensure that it is enforceable. This is especially so if the arbitration related to a financial settlement on divorce. However, getting an order is likely to be a formality.

Arbitrator doesn’t have powers of judge

Sometimes in the course of resolving a family law matter an issue arises that requires the powers of a judge. Take, for example, the not uncommon situation in a financial case where one party has failed to make full disclosure of their means. The other party will want them to be forced to make full disclosure, but the arbitrator doesn’t have the power to require them to do so.

Upfront cost

There is a fee for arbitration, and this is shared between the parties. This is an ‘upfront’ cost that the parties will have to find before the arbitration can take place. However, the cost of arbitration is still likely to be considerably less than the cost of contested court proceedings, as mentioned above.

Notwithstanding these matters, in most cases the advantages of arbitration considerably outweigh the disadvantages. Anyone with family law issues that can’t be sorted out by agreement should therefore give serious consideration to having the matter resolved via arbitration.

How can we help?

For further information, please see the Arbitration page. We also have a Divorce Support Club, to provide support whilst going through a divorce or a separation.

Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.

Please contact us if you require any further information.