What Is Arbitration And Can It Be Used To Resolve My Dispute?

There are lot of methods for dealing with family law disputes and it can be hard to know which one is the right fit for your situation. In this article Vanessa Friend, a Partner and Head of Mediation and Alternative Dispute Resolution, explains the options with a focus on arbitration.

First steps

When a family law issues arises a sensible first step is to speak to a solicitor. They can advise you on the legal elements and the best approach. In doing this, they should explain the different process options. The key ones are set out below and can be used for married and unmarried couples and for other relevant parties. For example, a grandparent wishing to make an application to see their grandchild.

1. Solicitors’ negotiations – this involves each party having a lawyer and the lawyers exchanging correspondence to reach an agreement which is then endorsed by the court. They can also include face to face roundtable meetings.
2. Mediation – the parties attend meetings with a trained impartial mediator who will help them to work through the issues in a constructive way. Mediation is confidential so it is often a good space to discuss proposals.
3. Collaborative law – the parties each instruct a collaboratively trained lawyer and negotiations are conducted via 4 way meetings between the lawyers and clients. Everyone signs a collaboration agreement saying they commit to not going to court. If the process breaks down the lawyers can no longer act and the parties will need to find new lawyers. This is an incentive to reach an agreement.
4. Private FDR hearing (for financial matters) – the parties appoint a private FDR “judge” to give a non-binding opinion on their case. The judge is normally someone senior in the legal profession. A private FDR mimics the second hearing in the standard court proceedings, which is a called a Financial Dispute Resolution hearing. It is designed to facilitate the parties reaching an agreement.
5. Arbitration.

What is arbitration?

Family arbitration is a form of private dispute resolution in which the parties enter into an agreement to appoint a qualified arbitrator to make a binding decision, which is called an award. It is therefore like a court process in that the arbitrator will make an award after hearing the evidence.

The process can be used for the following issues:

• Marriage and its breakdown including financial provision.

• Civil partnership and its breakdown.

• Cohabitation and its breakdown.

• Property disputes.

• Financial provision for children, including where parents are unmarried.

• Living arrangements for children.

• Disputes over where children should go to school or other decisions relating to exercise of Parental Responsibility.

• Disputes over whether children should be allowed to move to another area or country (“relocation cases”).

• Financial provision for family members after a death.

What does the process involve?

a. The parties agree to use arbitration and contact proposed arbitrators to check their availability and costs. You can either select your own arbitrator or ask the governing arbitrator’s body to appoint one for you.

b. The parties sign an ARB1 form setting out the issues they want to arbitrate and submit it to the Institute of Family Law Arbitrators.

c. Once the arbitrator’s terms of business have been agreed the arbitration can start.

d. The process is likely to include:

•  A directions hearing where the arbitrator considers the case and decides what steps are needed before they can make a decision. For example, they may decide that you need to exchange witness statements or provide financial disclosure.

• A final hearing at which the arbitrator will make a decision and produce an award.

• It is possible to have an arbitration on paper where there are no hearings.

• Once an award has been made the parties’ lawyers will prepare a court order to reflect the arbitral award, which will be submitted to the court. The court will then produce a sealed court order which brings the matter to an end.

Each case is different in terms of the subject of the arbitration (e.g. children or financial issues) and the scope of arbitration (e.g. some people just want an arbitrator to decide one small point, other people want them to deal with lots of issues).

The benefits of arbitration

There are many benefits to arbitration:

• You can choose your arbitrator to ensure they have the skills you require. For example, if the main asset is a family company you can choose an arbitrator with expertise in this area.

• The process is usually much faster than a court application.

• It is a bespoke process, so you can choose where to have the hearings and arrange them at times convenient to you.

• It is private and does not involve attending a court building.

• The arbitrator is totally focussed on your matter. In contrast, judges are often stretched across too many cases.

Is it for me?

Arbitration is a good option if you want a binding decision in a short space of time. You also need to have the funds to pay for the arbitrator. There is lots of choice, because arbitrators are free to set their own rates.

It is not suitable for all cases. For example, if you have serious safeguarding issues in relation to a child; and cannot be used for bankruptcy or insolvency proceedings.

Arbitration is voluntary so you cannot compel a person to attend. In that circumstance, your only option may be to issue a court application.

How can we assist?

We know that considering the next steps in a family law dispute can be intimidating. Our approachable and experienced family law team can advise you on the best approach for your situation. Please feel free to contact Vanessa Friend at vfriend@hja.net for more information and to organise an informal call.