Family law arbitration is the latest development in alternative dispute resolution (ADR) – alternatives to using the Court process to resolve family issues. Other ADR options include mediation and collaborative law, both of which members of the group can also provide.
Arbitration has been around for a long time and is used extensively in commercial and shipping law. Legal authority comes from the Arbitration Act 1996 and the Family Law Arbitration Rules 2014. Essentially it provides a binding decision on family law financial issues without involving the Court.
Both parties must agree to enter into arbitration and to the appointment of the particular arbitrator. However, once arbitration is started it cannot be ended until the arbitrator makes a final binding award, unless both parties agree.
Family law arbitration is currently limited to dealing with the financial issues arising from a relationship breakdown, whether that is divorce, civil partnership dissolution or separation of unmarried parties. It cannot decide issues of where children live or how often they should see each of the parents, for example. Those points however can still be addressed by mediation and collaborative law.
The great advantage of arbitration is that it is entirely controlled by the parties: you decide who the arbitrator is, what they decide, how it is decided and when.
The arbitrator can deal with the whole issue for you, or simply deal with a specific point or procedural issue. For example, how a house or company should be valued.
You also decide how that is dealt with – arbitrators can hold full contested hearings and involve expert witnesses, just as a Court can, but that is not always necessary. You might prefer the arbitrator to deal with a point simply by looking at papers put forward by both parties, without any hearing at all. If a hearing is needed, it can conducted by telephone, video conference or any other means agreed – there is total flexibility.
Perhaps most importantly, you control when this happens – with the Courts increasingly busy, and a wait of several months for a thirty minute appointment with the Judge increasingly common, this is a very valuable aspect of arbitration.
The decision (referred to as the “Award”) of an arbitrator is binding on the parties and can only be appealed in very limited circumstances. If the rules require the parties to apply to the Court for an Order in the same terms as the arbitration award, a Court may require amendments to the award before giving its approval, but that is unlikely. The President of the Family Division in the case of S v S (a case actually from this area) confirmed the Court will support arbitrator awards save only in extreme cases (which could have been appealed under the arbitration rules in any event).