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  • Tracey O' Dwyer

Arbitration - what's not to love?

I'll begin by saying - huge fan here. The cases I have had that have gone through arbitration have been quicker and less costly than court.

 

So what is a family arbitration? I don't think I can do better than refer you to the Institute of Family Arbitrators' (IFLA) website, which has a great guide here.


In a nutshell, you and your spouse appoint an arbitrator to make a decision on an issue that is in dispute between you, where you have been unable to come to an agreement yourselves. This could be related to your whole dispute, or just part of it.


Arbitration can be used for decisions over child arrangements, called a determination, or on finances, called an award. This blog is focused on financial awards.


After the award is made, you will then submit a consent order to the court in similar terms, so that you have a binding order. Whilst the award is intended to be binding, in the same way as a court order there can be grounds to not be bound by it (for example, an appeal or you have discovered material assets were concealed) but those situations will be rare.


How does it work? You and your spouse will jointly choose your arbitrator, who must be a member of the IFLA. You will sign an agreement, and thereafter your case will follow a similar process to a court process, but it will usually be quicker and you retain some control. There will be arrangements for disclosure, and experts can be appointed where needed, for example, for property valuations, pension reports, business valuations or tax reports. At the end, the arbitrator will make an award, although in some cases before it reaches that stage, you may have reached an agreement yourselves, in which case the arbitrator will make an award by consent provided he or she agrees it is suitable.


After the award is made, you will then submit a consent order to the court in similar terms, so that you have a binding order. Whilst the award is intended to be binding, in the same way as a court order there can be grounds to not be bound by it (for example, an appeal or you have discovered material assets were concealed) but those situations will be rare.


What cases is it suitable for? It can be used from the start of the matter, or where other methods have failed. For example, you might have attended mediation, but been unable to agree a final settlement or perhaps there is just one small issue that you cannot resolve. Rather than go to court, your case could be referred to an arbitrator to make the decisions for you. Or you might feel that negotiations are likely to be futile, and that you and your spouse will struggle to agree on anything. In the past, that is the sort of case that may well have ended up in court, but arbitration is a great alternative.


Why is arbitration better than court? Lots of reasons, and these are largely taken from the IFLA website, but I can say I agree with them all:

  • You and your spouse can choose your arbitrator (or if you cannot agree that, they can be appointed by the IFLA from an agreed selection), and that arbitrator will be your arbitrator from start to finish. This is unlike court where you'll probably see a different judge at every stage.

  • It is generally cheaper than court. You will pay the arbitrator, but even taking that into account, the costs usually come in significantly lower. The process is streamlined, and tailored to your situation.

  • Speed. It will generally be MUCH quicker. There are often significant delays at the courts, with lengthy gaps between hearings. Arbitration is less formal with ability to move appointments forward and back far more easily.

  • Control. You will have much more control over the process and what you want to happen, with the arbitrator having the final say where matters are not agreed,.

  • It is less scary for clients than the formality of court.

So why are the courts so full, and take up of arbitration low? I don't know the answer to this, and I have suggested arbitration on a number of cases, and it has been refused without explanation. My view is that in some cases it is because it is not familiar to a lot of family lawyers, and old habits die hard. However, with the courts overloaded and usually the least attractive option to resolve your issues, I am sure that arbitration will continue to grow in popularity and use.


if you would like to find out more, please contact me




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