With the Courts in England and Wales struggling with significant backlogs, this is the fourth in a series of articles when Family Law Expert, Sally Harris, explores alternative routes to resolve matrimonial financial claims without waiting months for a Court date.
What is Family Law Arbitration?
- In family arbitration the parties appoint an arbitrator to make a binding and final decision on any financial, property or child related disputes. The arbitrator will be a fully qualified arbitrator in family law matters.
- Arbitration is a voluntary process and an Alternate Dispute Resolution process to using the Court system.
- Parties are able to choose the arbitrator best qualified to look at their disputes and the one that fits their budget.
- A single specific issue can be considered or the entire case depending on how the parties wish their arbitration to move forward.
- Timescales are flexible and can be agreed with the arbitrator. This is very different to the inflexibility of the Court system which also suffers with significant delays.
- When signing up to the arbitration process parties agree not to apply to Court and to be bound by the arbitrator’s decision.
- Once concluded, the arbitrator’s decision is final and is drafted into a consent order. This is filed with the Court for judicial approval and Court sealing.
- The parties retain more control over the process than by taking the Court route. It can be swifter and cheaper as the parties determine the issues the arbitrator needs to deal with by tailoring the process to meet their specific needs.
- Arbitrators can be sourced via the IFLA (Institute of Family Law Arbitrators) which is a not for profit organisation created by the Chartered Institute of Arbitrators, the Family Bar Association and the Family Lawyers Group Resolution.
- Arbitration is one of a growing number of Alternate Dispute Resolution processes available to parties who are able to agree the way forward to resolve their family law issues,
How does Family Law Arbitration work in practice?
- The first step is to sign up to the arbitration scheme, and to decide what issues need to be dealt with. This can be a very useful exercise to narrow the issues and to identify what actually needs to be decided, whether that be finances on divorce, financial support for children or jointly owned property for unmarried couples.
- Once the arbitrator has been appointed, the next step is to agree how the case will proceed. A benefit of the arbitration process is the freedom to agree the procedure together. For example, it could be agreed that a preliminary meeting is arranged for the parties, their lawyers and the arbitrator before holding a final hearing, or it could be agreed that the whole process be dealt with on paper. If meetings and hearings are held, these can be in more relaxed surroundings such as a solicitor’s office, rather than going to Court. The meetings and hearings can also take place at a time that suits the parties, even in the evening or at weekends.
- Each party’s legal team prepares the case to be provided to the arbitrator. The arbitrator has all the documents and information important to the case, along with representations from the legal representatives.
- Once the arbitrator delivers their final decision, known as an award, it is final and binding in the same manner as a Court Judgment. It can be appealed in the same way as a Court Order, unless the parties agree in advance to exclude the right to appeal.
- Generally, each party will pay their own costs unless they agree their own costs rules. However, the arbitrator does have the discretion to depart from the no order for costs rule on the basis of the conduct of a party, in the same way that a Judge can.
When can Family Law Arbitration be used?
Arbitration can be utilised at any stage during a case, and for a number of purposes;
- It can be used instead of Court proceedings altogether.
- It can be used to resolve a specific point of conflict which may be holding up negotiations in the rest of the case.
- It could be used instead of a Financial Dispute Resolution Hearing in a finance case on divorce, or instead of a Final Hearing, which could speed up the process by months.
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