Arbitration is commonly associated with the trades unions and large scale employment disputes. In the field of family law it is a relatively new concept; it only became available as a method of dispute resolution in February 2012.
Arbitration can be described as ‘private judging’ as it involves the parties in a financial/property dispute agreeing to appoint a qualified arbitrator to decide the outcome of their case. Family arbitrators have to be members of the Institute of Family Law Arbitrators (IFLA). The training involves a rigorous assessment process as well as proven track record of working in family law.
The arbitrator acts as a judge in the case and decides the outcome. They have the power to give ‘directions’ as to how the case is to proceed. Common directions made in court proceeding are, for example, that statements are prepared addressing particular issues or a property is valued.
Like a judge, the arbitrator considers the evidence and makes a decision, supported by a written judgment. It is then envisaged that the settlement will be embodied in a court order made by agreement which does not involve either party attending court.
The advantage of arbitration is that it is quicker and more flexible than the court process. Another advantage to those wanting their dispute to remain private is that the process is wholly confidential. Whilst family court proceedings are confidential, the media can be given permission to attend certain hearings. Arbitration will therefore appeal to people in the public eye.
It is claimed to be cheaper than court proceedings, but this is unlikely to be the case in lower value family cases as the arbitrator’s fees have to be met by the parties. The arbitration can take place at any venue at dates and times to suit the parties.
Whilst the idea of arbitration sounds like a viable alternative to court, the key question for anyone considering arbitration is whether the arbitrator’s decision is binding.
Guidance issued by James Munby, the President of the Family Division of the High Court, on 23rd November 2015 re-emphasizes a decision made in a 2013 case that an award made at arbitration should be upheld by a court unless there are very good reasons for not doing so. He stated that an alternative court imposed decision would only be made in the “rarest of cases”.
The guidance covers a number of other areas and is designed to assist the family court to support the arbitration process. If one party decides they no longer want to use arbitration once the process is underway and they apply to the family court for a financial order, the court proceedings can be delayed until the arbitration award is made. It will then be binding unless the court finds a very good reason for it not to be.
For those seeking confidentiality, the guidance allows for any arbitrated agreement to be lodged with the court in a sealed envelope which cannot be opened without the permission of a family judge.
Arbitration is therefore a process with teeth and one party cannot simply change their mind once it is underway; any decision is highly likely to be binding and the flexibility and confidentiality make it an attractive option for sorting out a financial settlement.
For more information about family arbitration visit IFLA.org.uk
0 Comments