What is Arbitration?
Arbitration is where an independent adjudicator is appointed to settle a dispute. In order for Arbitration to be utilised, both parties must consent to enter into the process and to provide their written agreement to be bound by the decision reached by the Arbitrator. Arbitration is therefore different to meditation or collaborative approaches to dispute resolution.
What are the benefits?
The decision of the independent arbitrator is binding.
Arbitration may now be used to determine financial settlements and also issues relating to children.
It is a useful mechanism, potentially in TOLATA disputes as the parties can decide not to be bound by the tricky CPR provisions which family practitioners can be uncomfortable with, but instead opt to utilise the more familiar FPR. If Arbitration is being used in a TOLATA dispute a final order is not required, however in family disputes a final order must be obtained in order to achieve a clean break. The process therefore has a degree of flexibility but the law of England and Wales must be applied to any dispute and of course the jurisdiction of the family court cannot be ousted. Parties need not worry however that their settlement is unlikely to be endorsed by the courts, with the decision of an Arbitrator typically treated in the same manner as a Consent Orders.
Should one party to seek to resile from the decision of an Arbitrator – this will not be looked upon favourably by the courts as; the parties have entered into Arbitration voluntarily with a view to being bound by the outcome. It is possible for both parties to agree to exit the process and revert to the family court; however one party cannot do so unilaterally.
The Arbitrator can however draw adverse inferences where one party has failed to comply with their duty of disclosure. The Arbitrator can also proceed in the absence of one party from which adverse inferences can be drawn.
One major advantage to the process is the speed with which it can be affected. Typically disputes can be resolved within 6 – 8 weeks which is much quicker than the usual court process for resolving disputes.
Only one Arbitrator will be appointed throughout the process thus giving continuity to the proceedings. It is the level of choice which allows the parties to determine the necessary level of expertise required. As the Arbitrator will have been selected by the parties and are being privately paid, (typically for a fixed fee thus giving a level of financial security to the parties), the parties can be assured that the Arbitrator will have read the papers and be fully up to speed with the issues in dispute.
Another major advantage is that the process is completely confidential and therefore is likely to appeal to high profile people. That is not to say it cannot be utilised for lesser value cases given the level of flexibility and speed with which cases can be determined. An Arbitrator can be selected to deal with a discreet point only; this can be particularly useful in children’s disputes, where for example, the parties cannot decide which school a child should attend. A decision will be made and given on the day. Likewise an Arbitrator can give a decision in writing, thus avoiding the parties coming together face-to-face.
Are there any drawbacks?
One difference to the family court is that it is not possible to compel 3rd parties to become involved in the dispute.
It is also not possible for a party to be held in contempt or committal proceedings instigated.
Is Arbitration it right for you?
This is still a relatively new form of dispute resolution and it therefore difficult to predict how effective or popular the scheme will prove to be. It therefore remains to be seen whether Arbitration will become the new norm for resolving financial and children disputes – particularly in children matters where the scheme has only been up and running since July 2016. The problems within the courts are well documented and experienced by family practitioners on a daily basis. It may be the case that parties come to regard this private forum as their best choice to resolving their disputes quickly and in arguably, a more cost effective manner.
If you would like to consider Arbitration as a means to resolving your dispute with your partner, BPS Family Law can assist. Please get in touch with Karen at Karen.Jones@bpsfamilylaw.co.uk or by telephone on 0161 926 1430.