What is Arbitration?

If you have reached an impasse in respect of a family law dispute, it may be tempting to make an application to the court to resolve the matter. However, there are other forms of dispute resolution which you should consider. One such method is known as Arbitration.

What is the problem with the Court process?

The Family Courts are working at their maximum capacity, and it is not unusual for hearings to be 6 months apart from each other because the Court simply cannot easily accommodate matters in a timely fashion. Due to judicial unavailability hearings have been vacated the day before or even the day of the hearing.

This will have various consequences. You are likely to spend a lot of money in preparation for each hearing, including the costs of instructing a barrister, which may not go ahead; any fees deemed to be payable to counsel will have to be paid, leaving you out of pocket. Vacated hearings also cause delay to the resolution of your matter whilst waiting for the Court to relist your hearing date.

The court process itself is also by its nature adversarial, which may not be beneficial to any future relationship you may need to have with your former partner.  

What is Arbitration?

Arbitration is a form of dispute resolution where you and your former partner enter into an agreement for a suitably qualified person, known as the arbitrator, to make a decision for the parties, to which the parties agree to be bound. The arbitrator will usually be a barrister or retired judge who specialises in family law, and therefore has the required knowledge of the law to be able to deal with your matter. Arbitration is therefore distinct from mediation, where it is the parties themselves who decide what the outcome will be.

Arbitration has various benefits over the court procedure. One of the key draws of arbitration is that it affords you and your former partner a lot of control over the process. You are able to decide on your choice of arbitrator. You are also able to decide where each meeting will occur, including whether it can occur remotely or in person, and to a certain degree, when each meeting will occur. This will depend on the length of time each expert needs to generate reports, should reports be needed.

Arbitration is less acrimonious than court proceedings. It can only be effective is both parties openly engage with all stages of the process.  The outcome will be an arbitration award, which is binding on the parties, unlike any other form of out of court dispute resolution, such as mediation.  An arbitration award is subsequently recorded in a financial consent order which is filed at court. Arbitration encourages a positive relationship between the parties, which is key where children are involved.

The Limitations of Arbitration

The main limitation of Arbitration is its initial cost. The cost of instructing an arbitrator is going to be higher than the cost of making an application to the court. However, the costs of arbitration proceedings are likely to be less than those incurred over the course of court proceedings, so the overall cost burden would be lower and the process swifter.

There are some areas of law that an arbitrator cannot decide upon. For example, arbitration cannot be used where there is a safeguarding risk, as that needs to be considered by the court.

There is also a risk that Arbitration could break down and be ineffective. Should this happen, a court application would have to be made to resolve the matter, resulting in wasted costs for both parties.

Is Arbitration right for me?

There are a lot of considerations that need to be taken into account when deciding whether or not to proceed with arbitration. The Solicitors at Johnson Astills can help you in deciding whether or not you should attend arbitration or any other form of dispute resolution and guide you through the process of doing so.

If you are considering whether or not to attend arbitration, please call us at our office in Leicester on 0116 255 4855 or our office in Loughborough on 01509 610 312 and ask to speak to a member of the Family Team. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.