If you find that you and your ex simply can’t make a decision on one or all issues, then you need a decision-maker, this is where Arbitration comes in.
Sadly, most people at the moment would issue an application at court to ask a judge to adjudicate.
As you’ll know by now the court is not a good option. Instead, use Arbitration to ask the Arbitrator to make the decision for you.
To do this, you both choose an Arbitrator who you agree will make a legally binding decision; if you can’t agree or if you prefer, then IFLA (ifla.org.uk) will appoint someone for you. Arbitrators are usually ex-judges, senior family law barristers or solicitors.
You can ask them to decide on your financial settlement and/or about the arrangements for your children (a family law arbitrator can decide on pretty much all family law issues). You can ask for just bits of your case to be resolved (e.g. who should live in the house or how much spousal maintenance should be paid) or for a decision on everything.
There Are Some Formalities That Must Take Place:
- you will both have to sign the Arbitrator’s terms and conditions;
- you both sign form ARB1 that will legally bind you to the arbitrator’s decision;
- you formally agree what issues the Arbitrator will consider;
- you agree with the arbitrator what form the Arbitration will take. On the papers only or it could mimic the court process or you can let the Arbitrator decide;
- once the Arbitrator has made a decision on the finances (called an Award) you must convert it to a court order – this is called a consent order. You may not have to do so if the decision relates to arrangements for children because of the ‘no order principle’ but in your case it may be wise to do so (e.g. for certainty or because another authority e.g. a school or doctor must have a court order).
The Arbitrator sets the deadlines for you to do the work you must do for them to make a decision — if you can’t agree on those deadlines the Arbitrator will decide. They will keep things on track in a way that is simply not possible by the court without applications being made by you or your lawyer.
Could Arbitration Work For Me?
If you would otherwise have to go to court for a decision this is the perfect pro- cess for you.
It’s tailor-made for your requirements and all arbitrators are highly trained, experienced family law barristers and solicitors (with at least 10 years’ relevant legal experience).
It is likely you will find the process helpful too as many arbitrators are informal and more inquisitorial than the court process (which is formal and adversarial).
Its legally binding nature is a boon for those who can’t make or agree on decisions for themselves.
- You can choose your Arbitrator (you can never choose your judge at court).
- Just one Arbitrator will be involved This compares to a court system where it is highly likely that you will never see the same judge more than once.
- The Arbitrator will always be prepared and on top of your case. The court is oversubscribed and judges aren’t given much time to deal with each case.
- The Arbitrator keeps you on track.
- It’s very quick. You will not need to attend a MIAM appointment to start things off as you do with court.
- You do not necessarily need to have lawyers (but the same goes for court) — although it’s not advised.
- It’s confidential (the press or legal bloggers will never gain entry).
- Legally binding (although there is the possibility of appeal).
- You choose the issues decided.
- A fixed fee can be agreed up front and represents excellent value for money.
- The process is very predictable. Any hearings or review hearings with the arbitrator are very rarely, if ever, postponed by the Arbitrator, unlike the court process where last-minute hearings are frequently postponed. Such postponements are costly because you will have paid your lawyers to prepare for the hearing and the brief fee for the barrister will already have been incurred.
- Awards and determinations can be appealed (in limited circumstances).
- Awards and determinations are enforceable.
- The court can have a supervision role to ensure compliance with the Arbitrator’s interim decisions e.g. making sure financial disclosure takes place.
- You must both agree to be part of the process and follow the formalities outlined above. If one of you won’t, then neither of you can.
- You may make a mistake about the issues to be decided and realise too late that the Arbitrator did not make all the decisions you needed. (It might be best to leave the issues vague enough to allow wiggle room).
- Cost. You must pay the Arbitrator a fee. The court process is free apart from the court fee — the judge does not, directly, charge you.
- Awards and determinations can be appealed.
- If the court has a supervisory role this will duplicate costs and take extra time.
- Your lawyer may not recommend it. They fear that if the arbitrator goes against you, they will be blamed by you.
How Do I Prepare For Arbitration?
- You could try to research the Arbitrators so you can present a few for the other party to consider.
- Consider how best to use the Arbitrator. Can you narrow the issues they decide? This may save time and money. But beware of making their terms of engagement too narrow and thus miss something vital.
- Read the rules and formalities so you know what to expect, although these are pretty complex. The arbitrator will guide you anyway.
What Other Non-Court Options Could Arbitration Be Used with?
All of them. If you can’t agree on a single point it’s the perfect resolution. It’s probably the end point of all these processes if you can’t reach a decision. Better than going to court.