Family law issues should of course be resolved by agreement, but sometimes that is simply not possible, and the issues will have to be resolved for the couple concerned. And that normally means going to court. But going to court can be extremely expensive and time consuming. It can also mean that the private issues involved are played out in front of the media.
There is, however, a better way – In this article we talk about the arbitration act 1996.
Arbitration is a form of dispute resolution whereby the parties agree to appoint a suitably qualified person (an “Arbitrator”) to adjudicate the dispute, and make an award (in financial cases) or a ‘determination’ (in children cases). The award or determination is made on the basis of the law and is legally binding. It will often be made into a court order, usually without the necessity of attending court.
Family arbitration is a relatively new way of resolving family issues, having only been available for financial cases (such as financial remedies on divorce) since 2012, and for cases concerning arrangements for children since 2016.
However, arbitration has been around for much longer than that, having been widely used in commercial disputes.
The procedural framework for arbitration is provided by the Arbitration Act 1996.
The Act seeks to draw an appropriate balance between allowing parties freedom to determine the procedure for resolution of their dispute, while at the same time maintaining adequate supervision by the courts. In particular, the provisions of the Act are designed to ensure that the arbitration is founded on genuine agreement, and that the procedure is fair and impartial.
The two arbitration schemes (for financial and children cases) are operated under the Institute of Family Law Arbitrators (‘IFLA’), a not for profit company.
In family proceedings the court can’t be prevented from deciding a case, even if both parties agree. However, there is no conflict between the role of the Family Court and the resolution of matters by IFLA arbitrations. Both the High Court and the Court of Appeal have supported arbitration awards incorporating them into court orders.
In a sense arbitration is like court proceedings, in that each party gives their evidence to someone, who then decides their case for them. But arbitration has a number of benefits over the court process, including the following:
Whilst the Arbitrator will charge a fee, the cost of an arbitration is still likely to be significantly less than contested court proceedings. (Note that each party can have their own lawyers advising and representing them through the arbitration process, so obviously the lawyers’ fees will have to be taken into account.)
Family Court proceedings are notoriously slow. The latest Family Court statistics, for example, showed that cases between parents regarding arrangements for their children are taking on average 47 weeks to reach a final order. Arbitration is likely to be much quicker than that.
It is possible that the media may be present at the hearing of a Family Court case. Most people will not want their private issues played out in front of the media, and may therefore choose arbitration, which is essentially private.
Obviously, court proceedings are controlled by the court, not the parties. In the arbitration process, however, the parties can liaise with the arbitrator and decide how the process should be conducted. For example, they could decide that the process should be document only, conducted via a remote platform, by telephone, or by face-to-face meetings.
Arbitration can be combined with other out of court family law solutions, to ensure that the matter does not have to involve contested court proceedings. For example, the parties may agree to mediate, and if the mediation is not successful then they can take the matter to arbitration (the mediation may well narrow the issues that the arbitrator has to decide).
For more details about arbitration and how it can help you resolve your family law issues, see our arbitration page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors, 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.