Arbitration – Alternative Dispute Resolution

Arbitration is an alternative method of dispute resolution used in a variety of circumstances, but increasingly in family law disputes. It is often used where mediation or negotiation between solicitors is unsuccessful, and where a divorcing couple do not want to take their case to court. Guided by their respective solicitors, the parties will usually choose an arbitrator to adjudicate on their matter, although in the absence of agreement the option remains to ask the Institute of Family Law Arbitrators (IFLA) to nominate an appropriate arbitrator from their panel.

At an arbitration hearing, the arbitrator will have read all the written documents submitted and will then often hear evidence from both parties, as well as oral submissions from barristers for each of them. In instances of smaller disputes it is sometimes possible to consult an arbitrator to make a decision without an in-person hearing, with them only considering the paperwork on an isolated issue.

At the end of proceedings, the arbitrator will make an award for financial proceedings, or a determination for child matters. They must make this award within a reasonable time, which the Family Law Arbitration Financial Scheme (IFLAFS) Rules suggest is no more than 28 days after the proceedings have been concluded. In most cases, the award will be converted into a court order and is therefore legally binding and enforceable.

The most significant of these advantages are speed and confidentiality. As a result of Covid-19 and the reduction in availability of legal aid, there is currently a significant backlog in the courts. Arbitration is a significantly less time-consuming process than going to court as the timetable of the arbitration is up to the parties to decide, with arbitrations often concluding with a final outcome in a few months what would take the court 18 months to two years to reach.

The proceedings are also kept confidential, whereas in court proceedings accredited journalists and bloggers can attend. This makes arbitration an attractive option for high profile individuals, who may want their case to be kept out of the media, or for those with sensitive commercial dealings who would wish to preserve privacy for business advantage. Our experience is that this can level a playing field where one party wishes to exploit the other’s concerns about publicity to drive an advantageous settlement.

Overall, arbitration is a more cost-effective option than going to court because of the time saved. However, parties do still need to pay privately for arbitration including for the judge’s fees, which is not an expense incurred at court. This also means that arbitration is not available for cases funded by legal aid.

Arbitrators have no power over third parties. Therefore, if evidence is required from a third party, such as an employer or a new partner, they cannot be forced to provide any documents or other evidence.  If there is a risk that someone’s partner may try to hide their assets, then arbitration is unlikely to be the appropriate form of dispute resolution as the arbitrator does not have the same powers as the court to compel the production of financial disclosure.

The lawyers in the Hanne & Co Family & Divorce department have experience in arbitration proceedings and all forms of dispute resolution and can discuss with you in detail what would be right for you and your circumstances.

If you would like to find out more about arbitration, you can call us on 020 7228 0017 or contact us with the form below.