Court proceedings, as we all know, can be both highly expensive and extremely slow, with the entire process being governed by court rules and the decisions of whatever judges are available to deal with the case. Surely there is a better way for couples who are unable to agree matters to resolve their disputes? Well, there is. Why not take back control of the process and go to arbitration?
As explained in this post, arbitration is one of the methods that couples can use to resolve family disputes out of court, but it differs from mediation and collaborative law in that it involves having the matter decided for them, rather than helping them to reach an agreement. This means that the couple are guaranteed to have the matter concluded. The decision of the arbitrator will be binding, and may be made into a court order (the arbitrator will reach their decision in accordance with the law of England and Wales).
Arbitration is now available to help separating couples resolve many types of family disputes, including financial remedy claims following divorce or civil partnership dissolution, disputes over arrangements for children and property disputes between unmarried couples.
Arbitration can only take place if both parties agree to it. If they do, they can appoint a trained family arbitrator to deal with the case, at a convenient time and venue. (An arbitrator will be appointed for them if they cannot agree who the arbitrator should be.)
The arbitrator will charge a fee for their services. The level of the fee will be agreed at the outset, either on an hourly basis, or as a fixed fee covering the whole case or fixed steps in the process. There may also be a fee for hiring the venue where the arbitration takes place. All fees are normally shared equally between the parties.
The arbitration process will vary from case to case but might involve an initial hearing at which the arbitrator will decide what needs to be done to get the case ready, followed by a final hearing, at which each party has an opportunity to put forward their case. After the final hearing the arbitrator will make their decision, which will be put in writing, together with the reasons for coming to the decision. The parties have the right to appeal the decision, if they think that there has been a legal error or serious irregularity. As mentioned above, the decision may be made into a court order, depending upon the type of matter in dispute – decisions relating to financial remedy claims, for example, should normally be made into court orders, but decisions relating to disputes over arrangements for children are less likely to need court orders.
Both parties can take independent legal advice before, during or after the arbitration process, at their own expense.
So why choose arbitration, rather than have your matter dealt with by the court? Well, there are a number of advantages to arbitration, including:
• It is likely to be a lot quicker than court proceedings – the parties can even agree the timetable, subject to the arbitrator’s availability.
• It is likely to cost less than court proceedings, because of the speed and flexibility of the process. For example, the parties can agree to concentrate just on the essential points to be decided.
• The parties can control the procedure, including such matters as whether it is dealt with by document only (rather than hearings) and even what parts of the dispute they want the arbitrator to decide.
• Lastly, arbitration is completely private and confidential – the media are not entitled to attend arbitration hearings.
If you if you would like to have your matter referred to arbitration, or if you would just like more information about arbitration, Family Law Cafe can help. You can call us on 020 3904 0506 or email us at info@flc.chcdigital.com.
Image: Boardroom, by Sofitel Dubai Downtown, licensed under CC BY 2.0.