Arbitration

Arbitration provides a genuine alternative to court-proceedings. It is a confidential process that involves the resolution of a Family dispute, concerning children or finances, by an impartial and chosen arbitrator who reaches a decision on the issues referred to him or her by the parties.

 

Separating couples may choose arbitration as a direct alterative to court-based litigation. However, arbitration may also be of benefit where the parties have engaged in other forms of non-court dispute resolution (such as mediation or solicitor-negotiation) and have been unable to resolve an issue or a number of issues; those issues can then be referred to arbitration for a decision to be made in relation to them.

 

Arbitration is likely to result in a much faster resolution of Family issues than court litigation. Overall, it is likely to be far less expensive to the couple than going to court, despite the need to pay for the arbitrator, because it avoids the continuing expense of delayed court proceedings.

 

Arbitration hearings can take place in an office, in barristers’ chambers or in any other suitable environment and can be arranged at times that suit all of those concerned. Another particular advantage is that the parties can select the arbitrator and so they can ensure that their case is resolved by someone who has the necessary expertise to do so. Further, the arbitrator will set aside specific time to prepare the arbitration and will be able to focus solely on the parties’ case when a hearing is listed; the arbitrator will also provide a considered, written decision.

 

Like court proceedings, in an arbitration process there would usually be a (remote) directions hearing, where the arbitrator sets out the procedure to be followed and orders for expert evidence are made (such as an independent social worker report, pensions or valuation reports, as applicable).  An arbitration final hearing will follow. 

 

The arbitration final hearing feels very much like a court final hearing. It may involve oral evidence (which may be sworn or on affirmation) and speeches by the parties or their representatives.   It is held in private and without press attendance.  Where a discrete issue is to be determined, it may be possible for the arbitrator to make a determination on paper (i.e. on the basis of written evidence only).

 

The decision of the arbitrator is binding on the parties, subject to their right to challenge it before the Family Court (in the same way that parties have a right to appeal a court decision).  The Court would only hear such a challenge if it were to be shown that there was a realistic prospect of demonstrating that the arbitrator’s decision was wrong – thus, there is a filter that is imposed before a challenge to the court would be allowed to proceed.

 

The arbitrator will be an expert in Family law, with specialist expertise in the area of the issues that are placed before him/her.. Arbitrations are held in private and the couple retain control over the process, including the choice of arbitrator, the location and timing. 

 

We have a number of qualified arbitrators who can provide arbitration services for you.

 

Rules and Procedure

 

Arbitration is operated in this country by the Institute of Family Law Arbitrators (‘IFLA’). IFLA has created two sets of rules to govern the practice of Family Law Arbitration:

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• The Family Law Arbitration Children Scheme Rules 2021 governs the procedure in relation to children.

• The Family Law Financial Scheme Rules 2021 relates to financial arbitrations, including (but not limited to) claims that would fall under The Matrimonial Causes Act 1973, The Married Women’s Property Act 1882, The Inheritance (Provision for Family and Dependants) Act 1975, The Matrimonial and Family Proceedings Act 1984 (financial relief after overseas divorce), Schedule One of the Children Act 1989, The Trusts of Land and Appointment of Trustees Act 1996 and The Civil Partnership Act 2004 (Schedule 5 or Schedule 7, pt 1, para 2).

 

The procedure is usually started by the parties identifying an arbitrator that they would wish to appoint (although, if they do not wish to do so, they can ask IFLA to identify an arbitrator for them). Then a simple form must be completed and sent to IFLA – in financial proceedings it is Form ARB1FS and, in children proceedings, it is Form ARB1CS. Both forms are available on the internet.

 

The relevant form is then sent by IFLA to the arbitrator.  The arbitrator would usually then hold a remote ‘pre-engagement’ meeting to discuss the case further before committing to act as the arbitrator. Once the arbitrator has accepted the appointment, the remote directions hearing can be timetabled, followed by the arbitration final hearing.