Family Disputes: Is Arbitration Better For My Case?
If you’re stuck in the middle of a dispute with an ex and can’t reach an agreement, you don’t have to assume that the only option is going to court. It is always important to look at different ways of resolving disputes and taking up other options is increasingly relevant now as the family courts are overloaded with cases and are being criticised for inefficiency from all sides.
What is arbitration?
It mirrors the court system but is undertaken privately and by agreement between both parties. You agree between you to enter the process, who will be your arbitrator and you can manage what the arbitrator is to decide on and the timing of the process.
An arbitrator can deal with most aspects of family law, including financial division on divorce and disputes about children.
The arbitration itself takes place much like a court hearing, where both parties can be represented by lawyers, and each can put their positions forward. The difference is that on the day the space, and the arbitrator are at your disposal and you don’t have to compete for the judge’s attention with a busy court list and emergency hearings. The arbitrator makes a determination and grants an award – the equivalent of a judgment.
The award is binding on the parties. It can be converted into a court order in the same terms to give it legal effect, particularly where pension sharing orders and transfers of property are involved.
The Institute of Family Law Arbitrators (IFLA) was launched in 2012, though the current rules and guidelines have been updated to January 2018. Becoming an arbitrator requires training and qualification, and ongoing membership of the regulatory body. Arbitrators tend to be highly experienced family law barristers, and you can choose the one with the most relevant expertise for your dispute.
Arbitration is a private scheme that puts the parties in charge. Its purpose is to be quicker, more flexible and less expensive than going through the court system. It is also entirely confidential.
You can start arbitration at any point, before or during existing court proceedings. You can use an arbitrator to decide one discrete issue, or the whole case.
How does a court look at it?
Two recent High Court judgments emphasise the positive view the judiciary takes of arbitration, not just as a useful tool for families, but as a preferred option in some cases.
In the first, Judge Ambrose, (herself an arbitrator) dealt with an appeal against an arbitrator’s award which sought to open the whole case up before the family court for a new judgment about how to divide the matrimonial finances. The wife argued that the arbitrator had made errors and that the arbitration was undermined anyway because the parties had been forced to pursue it due to failures in the court system.
The judge refused the appeal on all grounds, praising the arbitrator’s care and expertise in the case, and found no reason for the award to be overruled.
In another, Mr Justice Moor was faced with a fairly mundane dispute about compliance with an interim direction in the middle of proceedings. He said that it was an issue which ‘should’ be referred to an arbitrator, who could deal with it better and with the same expertise, rather than using up court time.
Arbitration is increasingly popular, and a legally secure route to reaching a conclusion. If you are ready to have a decision made, and to bring the dispute to an end then you should consider if arbitration is a good route for you. It won’t be appropriate for every case, and this is something you should discuss with your lawyer.