Arbitration is a means of resolving disputes which takes place outside a formal court room. Because it is a move away from the traditional structure of court room litigation, it is classed as Alternative Dispute Resolution (‘ADR’). As well as arbitration, ADR typically includes early neutral evaluation, negotiation, conciliation and mediation.
If you are someone who values this degree of involvement, choice, confidentiality and control, then arbitration may be the more cost effective, quicker and less stressful solution for you.
In arbitration, the parties appoint an arbitrator, usually a lawyer, who has the appropriate qualifications and experience to adjudicate a dispute concerning finances or children. The parties agree to be bound by the reasoned and written decision of the arbitrator. This decision is called an ‘award’ when it relates to finances and it is known as a ‘determination’ when it concerns children.
Is arbitration right for me?
The first question you must ask yourself is not just whether arbitration might be right for you but also how likely it is that the other party will agree to arbitrate; without this consensus of approach, arbitration is not an option.
If it is a viable route, there are some significant benefits to the parties:
Time management: with the increasing burden on the family court and the resultant delays, there is more control of your time and that of your advisors in arbitration. You may have to wait six months or more for a final court hearing; an arbitration could be heard next week. The hearing is at a time and date of the parties’ choosing and it can even be at evenings and weekends. It can be set up quickly and there is little risk of it being moved or postponed.
Also, you may need to attend only one hearing and the case may also be able to be decided on upon documents alone.
Choice: you get to choose the arbitrator, although you may wish to refer to your legal advisor for advice on this point as they will have a view on who may be best for your case. You and your advisor can also choose the venue, provided it is agreed by the arbitrator and the other party, so travel time and related costs are minimised. Also, very importantly, you get to choose the remit of the arbitrator and the issues to be arbitrated. It is a Judge’s obligation to look at the whole case; if you wish, an arbitrator can decide only certain issues on which you are not agreed.
Communication: the same arbitrator will be used throughout the process and your legal advisor will be able to communicate and liaise with them directly, both sides being copied in.
Privacy and confidentiality: the whole process and the determination are confidential. The media are not entitled to be admitted at any stage.
However, there is a downside. If you don’t agree with the arbitrator and their decision, you then have to resort to the courts to appeal against the decision.
Nonetheless, if you are someone who values this degree of involvement, choice, confidentiality and control, then arbitration may be the more cost effective, quicker and less stressful solution for you.
What preparation should I do?
Parties can refer a matter to arbitration themselves or through legal advisors although most arbitrators only accept instructions from solicitors. This can be at the beginning of the dispute or part of the way through. Either way, the first step is to complete a form and send it to the IFLA. The forms are Form ARB1FS (in the case of financial disputes) or Form ARB1CS (in the case of children disputes), you con find them here. The form essentially confirms the terms and conditions. Depending on the stage of the dispute there may be additional checks such Disclosure and Barring Service (DBS). The arbitrator is then appointed and a planning meeting arranged, although this can be by phone.
You will be expected to work with your legal advisor to identify and clarify the key issues relating to the case. Expert reports may be considered if required to support your case. You will be helping your legal advisors to produce the necessary supporting background information or evidence. These papers, referred to as a ‘bundle’ will be sent to the arbitrator in advance of the actual arbitration.
Typically the bundle will include:
- a case summary;
- a schedule of issues to be considered;
- a timeline;
- any application documents filed in any court proceedings;
- statements of the parties with supporting evidence; and
- any expert reports and relevant financial documents if appropriate.
How to find a family arbitrator
Because it is relatively new, there are comparatively few trained family arbitrators but that number is increasing. Your legal advisor is there to help but if you want to research yourself, the Institute of Family Law Arbitrators (IFLA), and its website which lists all qualified specialist arbitrators is a good place to start.
Conclusion
Arbitration is an alternative form of dispute resolution which is also growing in popularity for those who recognise the benefits in relation to their specific case and circumstances.
Posted on June 20, 2019
