Arbitration: Another Option

For Good Divorce Week, we are highlighting all the ways separating or divorcing couples can resolve disputes away from court, also known as alternative dispute resolution (ADR).

ADR has grown in popularity over recent years, and particularly during the pandemic, as Family Court delays have increased. Some cases are taking two years or even longer to resolve. Any option that lets the parties avoid these incredible delays has immediate appeal.

This blog is about arbitration.

Family arbitration is where the parties in a dispute appoint an arbitrator to act essentially as a private judge in their case. It can be used in both financial disputes and a broad range of children related disputes. It can be used to decide the entire case (such as the general division of the finances on a divorce) or to decide one point within broader court proceedings (such as deciding the specific issue of how household contents and chattels are to be divided). The parties choose an arbitrator (an experienced family lawyer trained as an arbitrator) with expertise in the relevant area to decide their case in the same way that a judge in court would.

Arbitration in relation to financial disputes has been around as an option for about ten years, and for children related issues for 6 years. However, all the statistics suggest uptake of arbitration has to date been very slow.

It appears this was partly down to a lack of certainty on whether an arbitrator’s final decision could be appealed in the same way that a judgment in court might be appealed. In 2020 this concern was put to bed when the Court of Appeal confirmed that an arbitrator’s award in financial cases can indeed be appealed. That decision, and the remarkable delays we are currently seeing in court proceedings, may have given arbitration fresh appeal.

As with some other forms of ADR, the main benefits of arbitration include its speed, confidentiality, and flexibility.

Importantly, the parties themselves can have a say in how the proceedings are run. They can create a more tailor-made approach to their case than you would see in the one size fits all court process.  This will include practicalities such as choosing the venue, whether to meet face to face or through writing only, and whether to use the arbitrator for the whole process or just parts of it. Uniquely perhaps, it can also allow the parties proper say in deciding how their case should be conducted – for example, exactly what evidence each party should provide and how it should be presented.

And even on costs, while employing the arbitrator may cost some thousands of pounds, the fact that you will get a final decision much more quickly than you would in court can mean that arbitration actually ends up being more cost-effective than court.

The Institute of Family Law Arbitrators website has some useful further guidance for parties thinking about this option:

I have recently taken on my first financial arbitration. When you make the decision and get going, the advantages become more and more apparent. The timeframes are remarkably compressed. It’s something I am now going to be considering carefully with clients as an option in many cases.