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/ 25 Mar 2018

Family Arbitration – An Alternative to the Courts

Arbitration became available for resolving family matters in 2012 – since then, there has been a growing appetite amongst family practitioners and clients to engage in family arbitration instead of litigation. The Scheme’s authority derives from the Arbitration Act 1996, the rules thereunder and from the parties’ agreement to arbitrate.

What is Family Arbitration?

The family arbitration process is, in many ways, like going to court. A third party (the ‘arbitrator’) is appointed to make a decision (known as an ‘award’) regarding the parties’ finances and/or limited matters regarding children (where they make a determination). The arbitrator will examine all of the facts and information put before them and will then apply the law of England and Wales to make an award. The main difference between arbitration and the courts is that there is a lot more flexibility to tailor the proceedings to the couple in question, the Arbitrator is picked by the parties themselves and acts as a private adjudicator. Arbitration can be an alternative mode of resolving disputes if mediation or negotiation between solicitors is not successful. The parties do however have to pay the private fee of the Arbitrator.

How Does it Work?

Both parties must agree to engage in arbitration and  to initiate the process. Once the parties have decided on arbitration as their chosen method of resolving issues, they can look for a suitable arbitrator with the assistance of a solicitor. There are then a series of meetings usually involving a preliminary direction hearing and then a final hearing when the award is made.

The process is however flexible and depending on the circumstances of the case the process can be adapted. Throughout, you can choose to be represented by a solicitor or barrister and can also rely on expert evidence to support your case. Once an award is made, the court is asked to make the arbitrator’s award into a formal court order (known as a ‘consent order’) to make it enforceable. The award made is binding but in very limited circumstances, the court can overturn it.

Benefits of Arbitration

One of the major benefits of family arbitration is that you are able to choose an arbitrator who has extensive experience in a particular area of family law while in court proceedings, it will not always be the case that the judge allocated to your case is a specialist in any particular area. Throughout the arbitration process, you will have the same arbitrator who will be familiar with your case and will follow it through until the end. In litigation, often a different judge will deal with each hearing which can make the process more distressing for some.

In arbitration, you can pick and choose which elements of the dispute the arbitrator deals with. This means that you can, for example, choose to have the arbitrator decide just the amount of maintenance to be paid. Arbitration can be a helpful way to have decisions made on certain elements of the case when you have been able to reach an agreement on other aspects. In court, the judge has absolute discretion as to what order to make and you cannot choose what issues come under consideration.

A final and perhaps for some, the most significant benefit of arbitration is that you are able to choose when and where your hearing is held. There is currently a significant backlog in the courts and some parties can find themselves waiting months for a court date. Dates, times and location are set by the court system and the parties have very little input in this process. In arbitration, the parties are able to choose the date and time to have the hearing and can have it conducted at a mutually convenient venue. This can lessen some of the causes of stress that come with being involved in court proceedings as waiting for the hearing can make proceedings taxing for many people.

Who is it Not Suitable For?

Arbitration is suitable for most cases and is often preferable to going to court. However, there are a few instances in which arbitration is not suitable. These include, amongst others, cases where individuals are receiving legal aid and disputes involving complex children matters.


Arbitration is often a more time efficient means of resolving disputes following the breakdown of a marriage. It allows the parties to have more control over the proceedings and can lead to time savings. If arbitration is of interest to you, please contact the Family Department at Hanne & Co who will be able to give legal advice regarding your situation.



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