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Arbitration - suddenly more appealing

View profile for Robert Micklem
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There are many different ways to resolve issues arising following the breakdown of a relationship. Now, more than ever before, there is a renewed emphasis on alternative forms of dispute resolution which are often quicker and cheaper than using the courts. One such method is arbitration which is seeing an increase in popularity.

Arbitration is a confidential dispute resolution process outside of the court system in which an independent third party (the ‘arbitrator’) is appointed to determine the matter, and both you and your former partner are bound to that decision in the same way you would be were the matter to be determined by a judge in court. #reference “Arbitration: A Beginner’s Guide”.

One reason arbitration has historically been underutilised is that it has historically been difficult to appeal any award made by the arbitrator should one party consider that the award is incorrect. However, following the recent Court of Appeal case of Hayley v Hayley [2020] EWCA Civ 1369, this is no longer the case.

The Court of Appeal has made clear that the ability to appeal an arbitration award and the procedure used should be same as for appealing any order made in the family court process i.e. the person appealing the award must be able to show to the court:

  1. That there is a real prospect of successfully showing that the arbitrator’s award was wrong; or
  2. There is some other compelling reason why the appeal should be heard e.g. a serious irregularity effecting the tribunal or the arbitrator lacking jurisdiction.

If the court agrees that there is a reasonable prospect of showing that the arbitration award is wrong then a hearing will be listed to review the arbitrator’s award. If there is not, the court can make the order in the terms of the original award.

Why is this so relevant now

Given the current delays that are being experienced at court as a result of the global pandemic and the pressure on the court system to manage cases by way of remote hearings, arbitration is potentially the quickest and cheapest way of having your matter determined. Now that parties are able to appeal an arbitrator’s award (mirroring more than ever the court’s approach), it removes one of the concerns which many parties and practitioners have had in the past about engaging in the process, which was that any award was final.

This is not to say that every arbitration award can or should be appealed. However, the ability to appeal is arguably a welcome change and one which should (hopefully) open the arbitration system to more clients so that they are able to resolve their issues as quickly, cost effectively and efficiently as possible.

There are few circumstances in which arbitration will not be suitable to assist a separating family. From the whole case  to a discrete point that needs to be quickly resolved to enable negotiations to continue, arbitration can offer separating individuals tailor-made solutions at a difficult time and ease some of the stress often associated with court proceedings.

For further information in respect of the arbitration process please get in touch with us at mail@burgessmee.com.

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