ARBITRATION

What is Family Arbitration?

Family arbitration is a form of non court dispute resolution in which the parties agree to appoint a suitably qualified person (an “arbitrator”) to adjudicate a dispute and make an award. The arbitrator’s role is to make decisions when agreements can’t be reached. Their final decision is binding, providing certainty and closure. Both parties agree to appoint an arbitrator, who will act similarly to a judge but in a more flexible setting.
Family arbitration is akin to court proceedings in that a family arbitrator will produce a decision
after considering the evidence and each party’s case. In financial cases the decision is called an award
and in children cases it is called a determination.
After hearing each side, reviewing evidence, and considering legal principles the arbitrator makes a binding decision tailored to the couple’s unique circumstances. Arbitration can take place on paper, or in person and this will depend on the extent or complexity of the issues. The family arbitrator’s decision must be committed to writing and delivered promptly. The decision will include written reasons and a formal award.
The High Court and recently the Court of Appeal have supported arbitration awards incorporating
them into court orders.

What issues can be determined by an arbitrator?

Financial Disputes.

• Marriage and its breakdown (including financial provision on divorce, judicial separation or nullity).
• Civil partnership and its breakdown.
• Co-habitation and its termination (including disputes about property ownership)
• Disputes relating to financial provision for the benefit of children, usually when parents have not been married (Schedule 1)

Children Disputes.

• Where and with whom children shall live and how much time they should spend with each parent.
• Arrangements concerning the children’s upbringing.
• Relocation of children within England and Wales.
• The international relocation of children on a temporary or permanent basis to a “Hague” country.

Benefits of Family Arbitration:

• Efficiency: Faster resolutions compared to lengthy court cases. Arbitrations can be organised very quickly.
• Cost-Effective: Reduces legal fees associated with protracted court proceedings.
• Confidentiality: Proceedings are private, protecting family matters from public exposure and press reporting.
• Flexibility: Couples can choose the arbitrator and define the scope of issues to be resolved. They can also use arbitration in conjunction with other forms of non court dispute resolution, such as mediation or the One lawyer. One couple process to determine issues on an isolated basis.
• Reduced Conflict: A constructive environment that supports co-parenting and mutual respect.

Frequently Asked Questions (FAQs)

Can arbitration be used in conjunction with mediation?
Yes. Mediation can take place in parallel with an on-going family arbitration: sometimes a family arbitrator may consider mediation would benefit a couple and they may suggest this. A mediator may recommend family arbitration if it seems clear that a dispute, or one aspect of it, cannot settle in mediation. Arbitration is especially helpful when mediation has narrowed the issues and there are limited points to agree. Arbitration can be used in isolation to determine specific issues.

Can I issue court proceedings at the same time as arbitrating?
No. The rules say that once you have started arbitration you cannot issue court proceedings and any live proceedings will be stalled during the arbitration process.

Do we still have to produce financial disclosure?
Yes. The arbitrator will decide “directions” and you will both have to comply with these. In a financial matter, these directions will require financial disclosure to be made, if you have not already done so.

Can I Still Have Legal Advice?
Absolutely. While the arbitrator must remain impartial, both parties can seek independent legal advice throughout the process to ensure their interests are protected. You will work closely with your lawyer who will advise you, help you prepare any documentation required and will assist with representation at the arbitration itself.

Is Family Arbitration Expensive?
Family arbitration is generally more cost-effective than court proceedings. Costs are shared between both parties, and the streamlined process reduces prolonged legal fees.