Last updated on December 8th, 2021 at 01:49 pm

With cuts to legal aid funding and ever increasing pressures on the system, the court service is currently stretched to breaking point. Many court fees have recently increased at a time when many court users are disappointed with the standard of service they are receiving.  Arbitration could be an alternative.

Is arbitration an alternative in family matters?

It’s worth considering whether arbitration, as a form of dispute resolution, could be a viable alternative.  As it is widely associated with commercial and construction contracts, people often assume that arbitration cannot apply in family law disputes – but this is not the case.  Arbitration has been available for family law disputes since March 2012, and with a new family law children arbitration scheme being launched in July 2016.

What parts of the divorce/separation process can arbitration be used for?

Whilst you cannot obtain a divorce using arbitration, as this paper exercise must go through the court, you can sort out all related issues such as:

• division of property and finances on divorce
• property disputes between unmarried couples who are separating
• civil partnership dissolution financial and property claims
• financial claims for children under Schedule 1 of the Children Act 1989

From July 2016, a new arbitration scheme will extend scope to cover making binding arrangements about your children (residence, contact, etc.)

Both parties need to agree to arbitration

The process is gradually attracting more attention as an alternative to court. The process is consensual and both parties begin by agreeing to arbitrate and to adopt the rules of the scheme, and then summarise the issues to be arbitrated. An arbitrator is appointed and the process gets underway. Often there will be a preliminary meeting to discuss the arbitration timetable. In many cases there will be a final hearing but it can be entirely a paper exercise. The decision of the arbitrator can be made binding upon the parties in the same way as an order of the court, providing certainty of outcome and with very limited grounds for appeal.

Advantages of arbitration

The process carries a number of advantages over the court procedure:

• Flexibility – of process and timetable. Arbitration can take place any time and anywhere. It can start/finish before any proceedings are issued and it can be used for the resolution of a discreet single issue which is holding up negotiations or multiple issues.  It is much less formal than going to court.
• Choice – parties can’t choose which judge should determine their case, but they do get to select their own decision maker from the family arbitration panel.
• Continuity – the same arbitrator will deal with the case right through to its conclusion.
• Speed – it can be established in advance whether to deal with matters in an expedited way. Subject to the arbitrator’s availability the timetable is entirely in the hands of the parties.
• Cost – In many cases there will be an overall saving on cost. Although the parties will have to pay the arbitrator’s fee (for venue, etc.), the ability to limit disclosure and to short-circuit the process with a potentially huge saving of time will in many cases lead to a net cost saving.
• Confidentiality – the entire process is confidential and since the papers never go to court, the risk of media leaks is minimal. This is a distinct advantage in high profile cases where the parties want anonymity from the press.

Eleanor Hopwood

Although it won’t always be suitable, in the right circumstances arbitration has a number of advantages over the alternative more established routes, and looks to be an increasingly attractive option for resolving family disputes efficiently and effectively.

If you’d like to consider arbitration or find out more about it, please contact us now to arrange a fixed-fee first consultation with one of our experienced family solicitors.

By Eleanor Hopwood, family law solicitor