UPDATE 22.01.2021: Following the Court of Appeal case of Haley v Haley [2020] EWCA Civ 1369, the circumstances in which you can appeal an arbitration award have changed. You can read about those changes here.
In these uncertain times, the finality of a binding outcome to a financial or children dispute can be a great relief. Arbitration offers a cost-effective and speedy practical alternative to lengthy court proceedings. This blog post answers some of the most-common questions about arbitration.
- What is arbitration?
Arbitration is a confidential dispute resolution process outside of the court system in which an independent third party (the arbitrator) is appointed to make a decision and both you and your former partner are bound to that decision.
- How does it work?
Once an arbitrator has been appointed, you will agree between you:
- The issues to be arbitrated (this could be the whole dispute or just part of it)
- The format for the arbitration (this could be on paper or via a video/in-person hearing)
- The evidence required
- The timetable for the arbitration
If you can’t agree the above, the arbitrator can decide for you. In children arbitration you will also need to carry out safeguarding checks in advance.
After the arbitration you will receive a written decision from the arbitrator, which will be binding and turned into a court order.
- What sort of disputes is it suitable for?
Arbitration is suitable for almost all disputes arising on relationship breakdown, including financial and children disputes. You can also agree to arbitrate multiple issues within the same arbitration proceedings depending on the facts of your case (e.g. a financial resolution, how contents are to be divided, interim maintenance and so on).
- Who is appointed as arbitrator?
The arbitrator is usually a practising solicitor/barrister who specialises in family law. You and your former partner can agree an arbitrator between you or you can ask the Institute of Family Law Arbitrators to choose one for you.
The benefit of selecting your own arbitrator is that you will be able to choose someone who is an expert in the subject matter of your dispute and you can therefore have confidence in the decision that he or she makes. We can help you identify the right arbitrator for your case.
- Can I make the other party arbitrate?
No, arbitration is entirely voluntary. You cannot force the other party to participate. However, once both of you have formally signed up to it, neither of you can withdraw without the consent of the other.
- What if I don’t like the arbitrator’s decision?
The arbitrator’s decision will be binding as if it were a court order. You will only be able to appeal the decision if there has been a legal error or serious procedural irregularity.
- Can I arbitrate if I have already started court proceedings?
Yes! You can ask the court to suspend your court proceedings whilst you attend arbitration. Once the arbitrator has made his or her decision, you will send the consent order to the court to be sealed, which will bring an end to the court proceedings.
- Who pays for it?
You will usually share the costs of the arbitrator equally with your former partner but can agree a different arrangement if you prefer. The amount of his/her fee will depend on their seniority, the length of the arbitration and the work involved.
- Is it cost-effective?
The family courts are overburdened with cases which often leads to lengthy delays between hearings and judges who may be hearing several cases in one day and may not have time to adequately prepare and to dedicate to your case. These delays often create more issues which need to be resolved, and the delays in the process necessitate constant updating of disclosure and rounds of questions, moving targets as well as multiple hearings over a 12 to 18 month period, which increases costs. With arbitration, the parties can be sure that the arbitrator has had the time to give thorough consideration to the issues involved, but usually the process is quicker and involves only one main hearing (with a short directions hearing beforehand to set it up), and that in itself generates considerable cost savings.
- Why might arbitration be a good option during the coronavirus pandemic?
At the time of writing the UK is slowly emerging from lockdown. As a result, court hearings are frequently being adjourned, often with little notice and after legal fees have been incurred. Some hearings are being heard by Legal Advisors who cannot make an order unless the parties agree and the court’s use of remote hearing technology (for hearings via telephone or Skype) continues to be inconsistent. Even after the lockdown is fully lifted and in-person hearings return at all courts, social distancing will require fewer cases to be heard at once and the already considerable backlog of cases will continue to grow.
Arbitration offers a swift, tailored and binding outcome, allowing parties to bring an end to their legal proceedings and move on from their dispute.
If you have any questions on arbitration not covered in this article, please get in touch with us at mail@burgessmee.com to see if we can help.
Written by: Helena Middleton
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