Arbitration

What is arbitration and how does it work?

Arbitration is a form of alternative dispute resolution that offers a more private and streamlined approach to resolving family law disputes outside of court. Arbitration resembles court proceedings, but it is in a more flexible and less formal setting than a courtroom. 

It is strongly recommended that every prospective participant should take legal advice before entering into an arbitration agreement in order to understand the implications and effect of the arbitration process and of the Award or Determination. On signing the relevant form, parties are asked to confirm that they have had legal advice on the arbitration agreement. 

Arbitration retains similarities with court proceedings so representation by a lawyer may be the most effective way to present a case and the legal arguments in support. 

In arbitration, the parties agree to have a neutral third party (the arbitrator) make a binding decision on the dispute. The arbitrator hears evidence and arguments from both sides, and then issues an award. The parties agree to be bound by the arbitrator’s decision, which is usually final and can be enforced by a court. The couple can choose their arbitrator, and the arbitration process can be tailored to meet the specific needs of the couple. 

Arbitration offers several advantages over traditional litigation, including increased privacy and confidentiality, greater flexibility (e.g. procedure to adopt, whether to meet face to face or through writing only) and control over the process (e.g. choosing the arbitrator), and a quicker and more efficient resolution. Subject to the arbitrator’s availability, the timetable is up to the parties to agree. The parties avoid the risk of a case being adjourned or not finished because of pressure on court time or a judge becoming unavailable. The same arbitrator will deal with all stages of the case from start to finish. You have the flexibility to decide whether you want the arbitrator to handle the entire process or only specific parts where you are facing difficulties. 

The parties pay the arbitrator’s fee, the cost of any venue hired, and the cost of a transcription service if required. However, the ability to limit disclosure and the scope of the dispute could lead to a cost saving, since the parties can agree to narrow their case down and concentrate on the essential issues to be decided. 

It can be particularly beneficial in complex family law matters involving high-value assets, business interests, or sensitive issues. 

Arbitration is possible even if the parties are currently involved in court proceedings. All family court judges are aware of the benefits of arbitration. Recent changes to court rules give judges power to adjourn court proceedings to give the parties the opportunity to resolve the dispute through arbitration (as well as mediation and other forms of dispute resolution) without affecting the parties’ right to resume the court proceedings.

What are the powers of the arbitrator?

The arbitrator has wide-ranging powers to make decisions on any case management or substantive issues on which the parties cannot agree. In the absence of agreement, an arbitrator can, for example: 

• Decide what matters are included in the arbitration. 
• Decide on the evidence required, the amount of disclosure, the need for written submissions and whether an oral hearing is needed. 
• Make temporary orders including maintenance for a spouse. 

• Make decisions about the inspection or preservation of property in dispute. 
• Appoint an expert or assessor. 
• Unlike a judge, the arbitrator has no power to interview or meet the child or children concerned in a children case. However, the arbitrator may appoint a suitably qualified independent social worker to see the child or children. 

There are some situations where arbitration might not be suitable, for example if you need to get evidence from third parties or there is a risk that your partner might try to hide assets, but arbitration is a genuine alternative to going to court for most family cases.

How We Can Help

We recognise that family disputes can be emotionally challenging and daunting, and that is why our family law arbitration service places a strong emphasis on empathy and understanding. Our arbitration lawyers work closely with our clients to listen and to understand their unique circumstances, allowing us to provide personalised guidance and support to help them make informed decisions that serve their best interests and well-being of their families. 

Whether you are seeking a fair resolution for your divorce, establishing child custody arrangements, or navigating complex financial matters, we are here to help. 

Contact our arbitration lawyers to schedule a consultation today.