As we enter another week of lockdown due to the Covid-19 pandemic, we are mindful that there may be some hesitation in starting divorce proceedings or children matters in the courts. The courts are still functioning remotely but for some seeking an urgent outcome, this may not be a viable solution. Arbitration does not rely on the court system and this means disputes can still be resolved outside of the court system. Parties are always encouraged to resolve issues outside of court, and arbitration is another way to do just that.
Arbitration is a confidential form of dispute resolution. It is a consensual and voluntary process. Very often it can be a faster way of reaching a resolution. It can be used for married couples, civil partners and unmarried couples to resolve financial proceedings as well as children matters. Arbitrating allows you to have more control over the dispute in the sense that you can choose the arbitrator, you can choose when it will take place and you can choose how to run your arbitration.
Arbitrators are experienced family justice professionals, including solicitors, barristers, or retired judges. They must have at least 10 years post qualification experience. You are able to pick the arbitrator best suited to your circumstances, and they will act impartially and fairly. Arbitrators remain the same for the whole case which means that they will be able to clearly direct and navigate the case.
Arbitrators can be found through the Institute of Family Law Arbitrators (IFLA) and Resolution. If you do not agree on an arbitrator, the IFLA will nominate an arbitrator taking into account the nature of the dispute and any preferences that the parties may have suggested.
In contrast to the cost of funding a case to a final hearing in the courts, arbitration compares favourably. This is because the procedure is swifter with fewer needs for interim hearings. The sooner you decide that you wish to pursue arbitration the overall cost is likely to be less than the cost of months of lengthy negotiations when end up in court. Arbitrators can offer a fixed fee for certain parts of the case and further hourly rates for any preparation and unexpected work. It is generally the case that the parties share the costs of arbitration but this is subject to the arbitrator themselves and the agreement of the parties.
There are two schemes for family matters, being the financial scheme and the children scheme. Arbitration does not necessarily mean the whole of your case will be decided by an arbitrator. The parties will agree what it is exactly that the arbitrator is deciding for you. You will start arbitration by entering into the IFLA agreement to arbitrate. This will bind the parties to the process of arbitration and shows that you accept the IFLA rules. You must both agree to opt in to use the arbitration process and likewise, you will not be able to opt-out of the process unless by consensual agreement of the parties.
You can use arbitration to determine a particular issue upon which you cannot agree, for example, which expert to use in valuing a family home, or which school a child should attend. Arbitrators can now make determinations about the removal of a child from England and Wales to Hague Convention countries, including temporary removal such as holidays abroad.
Yes – the arbitrator will produce an award and this is binding. Your solicitor may need to draw up a formal order to mirror the terms of the award which the court will give its approval to. This is required where an arbitration award deals with the financial consequences of divorce.