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Family arbitration: key points, advantages and suitability

28 May 2020

What is arbitration?

Arbitration is an alternative to attending court. No-one can compel a party to agree to arbitrate but if you both agree to the process, the outcome is a binding decision made by the arbitrator, which is very hard to appeal.

The arbitrator will either decide your dispute on paper (if you ask them to) or make a decision after hearing evidence and submissions just like a judge would at a final hearing in court proceedings.

The arbitrator will apply the same law that the court would and their decision is final. Their decision can then be easily and quickly enshrined in a court order making it easy to enforce in the future.

What are the advantages of arbitration?

  • Remote hearings: Arbitrators are well equipped with the latest technology, and have been for some time. This means that they are able to continue working remotely, seamlessly transitioning to offering virtual as opposed to in-person hearings. This is a particular advantage during the pandemic but also helpful should one of the parties spend a significant amount of time abroad.
  • Private judge: The parties jointly choose an arbitrator meaning that a specialist, often a part-time judge, who is well suited to your case can be picked. If you cannot agree on who the arbitrator should be, the Institute of Family Law Arbitrators can be asked to select a suitable arbitrator instead. The arbitrator will dedicate ample time to reading and considering your case in detail, often far more time than a judge in court proceedings has the time to give.
  • Speed and flexibility: Unlike the court process, parties can set up hearings at their convenience to suit their timetable. You won’t have to wait months for an available hearing date (which is now likely to be worse than ever due to many hearings having been adjourned at the outset of the pandemic and in need of re-listing) or be stuck with a date and time the court has imposed on you. The venue is often the barrister’s chambers or the solicitor’s offices, which will be far more comfortable than an overcrowded court building.
  • Tailored to you: You can opt for the arbitrator to decide your case on paper, avoiding the need to give evidence or meet your partner face-to-face which you may find too stressful. If you have managed to resolve all bar just a few issues through negotiation, you can ask the arbitrator to specifically only deal with those issues you have been unable to settle, ensuring you retain a significant amount of control over any settlement.
  • Privacy: Arbitration hearings are not open to the public or the press ensuring complete privacy.
  • Finality: If you doubt you are going to be able to reach an agreement through negotiations, arbitration can offer a quick, cost effective route to a final, binding decision. It is difficult to appeal an arbitrator’s decision, unless there has been a manifest error.
  • Cost: Overall, whilst you have to pay for the arbitrator and venue, there can often be significant cost savings due to avoiding the delay that comes with entering the court system.

Is arbitration affected by COVID-19?

Most family law issues, including financial and child welfare issues, can be determined by arbitration.

During the pandemic you may find that you are disagreeing about:

  • handovers whilst government restrictions on movement remain in place;
  • whether the child arrangements routine should be varied to reduce the number of handovers at this time;
  • whether your child should spend more time than previously agreed with a parent who is temporarily not working so that they can assist with home-schooling; or
  • whether the spouse paying maintenance should continue to pay maintenance at the same rate/at all, if they have been furloughed/their income has reduced.

All of these disputes can be arbitrated and as above, arbitrators are set up to decide your dispute remotely, meaning your dispute can be resolved swiftly by an expert, even during the pandemic.

The courts have always supported arbitration as an alternative to the court process, encouraging parties to try it, even if they have commenced court proceedings already. The courts further show this support by turning arbitration decisions into court orders. Now more than ever before however, judges are strongly encouraging litigants to explore arbitration, as well as other forms of alternative dispute resolution (ADR), in order to resolve their dispute without delay.

Is arbitration suitable for all cases?

The vast majority of both financial and private children law disputes can be arbitrated.

In children cases, safeguarding questionnaires and a DBS check are required at the outset so that the arbitrator can assess whether the case is suitable for arbitration. For example, cases involving allegations of harm, including domestic abuse allegations or drug or alcohol misuse will not be considered suitable. An independent social worker can then be appointed if appropriate, to conduct the necessary enquiries into the child’s wishes and feelings, and report to the arbitrator on what would be in the child’s best interests.

Arbitration is commonly used in the following disputes:

  • division of financial assets following the breakdown of a relationship;
  • variation of spousal maintenance payments;
  • chattels disputes;
  • child arrangements;
  • schooling, including which school a child should attend and provision of school fees;
  • relocating within the country; and
  • as of 6 April 2020, arbitration has been expanded to include applications for relocation (temporary or permanent) to a wide range of foreign jurisdictions.

If you would like to know more about arbitration, or need assistance with any family law related matter, our Family team is here to help. You can contact the team here.

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