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Insights // 22 November 2021

What is Family Arbitration?

Partner Tasha Bevan-Stewart, in our Family Law team, explains family arbitration.

Arbitration is a way of resolving Family Law disputes as an alternative to court. If arrangements for finances or children on divorce cannot be settled informally, the separating couple can jointly appoint an arbitrator to decide their case. The outcome is binding on the parties and will be submitted to court for final approval.

Usually solicitors will assist and advise on setting up an arbitration, in cases where the parties have tried to negotiate. Or the divorcing party may have filed court proceedings and find that there are unacceptable delays in the court timetable. At this point, parties can elect to ‘sidestep’ litigation in favour of a private adjudication or arbitration.

The arbitrator, once appointed by the parties, has the power to decide financial matters on divorce, including some international aspects. Arbitrators can also deal with most issues relating to children.

The advantages of arbitration are its speed and flexibility, as well as confidentiality and comfort in your choice of venue. You will also have the same judge dealing with your case throughout, and not be subject to the vagaries of judicial allocation at court. You will avoid having your case heard by magistrates.

Arbitrators are specially trained and experienced legal professionals, who have usually practised as barristers or solicitors for many years. They often have more specialised knowledge of family law than judges who have been appointed to hear family cases but have more experience in other areas of law.

Most parties opt to have legal representation at arbitration, but it is not essential. The parties themselves agree the format of the hearing, and what steps will be necessary to prepare the case for the arbitrator. The arbitrator can deal with any preliminary issues efficiently and usually by phone or videolink. The arbitration hearing can also be held remotely.

Your case can also be heard urgently before an arbitrator if there is time pressure on you to make a decision – for example, deciding on a parent’s choice of school for their child.

The costs are the arbitrator’s time in hearing the case and writing the award, and any legal representative’s fees. There is no court fee, and the costs are likely to be much lower than going through a fully contested court process. What is key, however, is that both parties must agree to the arbitration, which replaces any court process. If you can’t agree which arbitrator to appoint, you can ask the Institute of Family Arbitrators (IFLA) to appoint one for you. Or you can ask them to choose from an agreed shortlist. Most arbitrators will offer a fixed fee for their services.

Most clients report that arbitration has been a huge saving for them in terms of costs and time, as well as far less stressful than contemplating a court hearing possibly listed months away. Court hearings can also be cancelled at the last minute, even when the case has been fully prepared and costs incurred. This is an increasing problem in family courts.

Arbitral decisions, or ‘awards’ can be challenged on appeal at the family courts if one party has grounds to argue that the decision was unfair or wrong. This is the case since the Court of Appeal case of Haley v Haley was decided in 2020. In that case, the parties had a hearing cancelled last minute and decided to arbitrate. This happened before the effects of the Covid pandemic were felt on the family justice system – the chances of delays and cancellations are now far higher.

Our specialist Family Law team can provide advice on Family Law matters.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Tasha Bevan-Stewart

Tasha Bevan-Stewart

Partner, Family Law

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