Family arbitration is a form of non-court alternative dispute resolution (NCDR) through which parties involved in family-related disputes – following separation or divorce – agree to submit their unresolved issues to an impartial third party, known as an arbitrator. The arbitrator will decide how the issues will be resolved.
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Unlike mediation, where a mediator facilitates negotiation and helps parties reach a mutually acceptable agreement, arbitration involves the arbitrator actively making decisions to resolve the dispute. The arbitration decision will be respected by the court and will be made an Order of the Court.
As noted in my previous articles, family mediation provides a route for people to make their own arrangements. However, In the event that you are not able to resolve your dispute either in full or in part, you can refer the issues that you have not been able to settle to a family arbitrator.
Arbitration has many benefits over court proceedings:
- Confidentiality: As family arbitration is a private process, and the media are not entitled to attend, the arbitration hearings are private and can only be attended by people who you permit.
- Quicker: The arbitration process is a lot quicker than going to court: you have control over when the hearings take place – unlike court where you will simply be allocated a hearing date.
- Consistency: Unlike with court proceedings, you get to choose your arbitrator, and will have the same arbitrator throughout the process providing consistency.
- Flexible: You get to choose the location for the hearings, and unlike court proceedings, you can decide whether the arbitrator is going to deal with the whole of the dispute, or only part of it.
- Legal representation: As with the court process, you can be represented by your legal adviser throughout the process.
- Cost: Whilst family arbitrators do charge a fee, as the process is quicker and more flexible, it is likely to cost less than court proceedings.
How Family Arbitration Works:
- Agreement to arbitrate: Parties involved in a family dispute who want to avoid going to court voluntarily agree to submit all, or some, of their unresolved issues to arbitration.
- Selection of arbitrator: The parties, often with the assistance of their legal representatives, choose an arbitrator. Your lawyers can help you to find an arbitrator, or you can search yourselves at the Institute of Family Law Arbitrators website: www.IFLA.org.uk.
- Arbitration process: Once you have completed the necessary documentation to appoint the arbitrator, the process begins. It may be a document-only process, or it may include in person or online meetings.
- Decision-making: The arbitrator makes their decision in writing, clearly setting out their reasons.
- Binding decision: Generally, after the arbitrator has made their decision, you will then take that decision to the court in order to obtain an order. There are very limited circumstances in which you can appeal an arbitrator’s decision.
At your initial mediation meeting, a mediator will explain to you all of the non-court dispute resolution processes available, including arbitration, to help you decide whether mediation or a different process, such as arbitration would be more appropriate.
You can find out more about the author Rebekah Gershuny HERE.
You may find this article useful ‘Preparing For Mediation – Practical Steps’.
