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?
Arbitration has a number of advantages over court proceedings, including the following:
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.
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.
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.
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.
Arbitration can be said to have some disadvantages, for example:
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.
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.
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.
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.
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.
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.
