What Is Family Arbitration?
Family arbitration is a method of dispute resolution in which a person with relevant qualifications, known as family arbitrator, makes a decision about your finances when your relationship has ended. It is an ideal approach if you are unable to come to a mutual agreement with your partner and you want to avoid the excessive costs and inherent delay of the court process. Like a judge in court, a family arbitrator will adjudicate the dispute and produce a decision after hearing from each party.
What is the scope of family arbitration?
Family arbitration can deal with the full range of family law financial issues including property related disputes, disagreements over child maintenance and claims following the breakup of a civil partnership. The parties can choose exactly what they want the family arbitrator to decide on. The scope of the arbitration can be therefore limited to discrete issues, such as whether the house should be sold now or at some future point. Family arbitration relies upon the same legal principles as the Family Courts and is subject to the laws of England and Wales, so parties can feel reassured in the legitimacy of the process.
What is the procedure in family arbitration?
The first step is to choose the arbitrator. You and your partner can either choose from the list provided by the Institute of Family Law Arbitrators (IFLA) or you can ask IFLA to choose one for you. The arbitrator will then invite the parties to put forward their proposals and will make directions for the procedural steps in the arbitration. One of the strengths of the arbitration process is that the arbitrator has wide procedural discretion giving the parties plenty of flexibility to suit the circumstances of the individual case. Each case is thus developed according to its requirements: it may be a document only process or include face to face and telephone meetings.
At the conclusion of the process, arbitrators will make the decision, known as award, which is the arbitral equivalent to a final judgment. The decision includes written reasons and is binding between the parties. If the subject matter of the award makes it necessary, the parties are bound to apply to the court for an order in the same or similar terms as the award. This is important to make sure that the decision can be enforced if your partner does not comply with it. Following recent rulings by the courts, it is expected that awards made under the IFLA Scheme will generally be upheld.
Comment
In essence, family arbitration offers speed and flexibility, as the parties have the ability to choose an arbitrator tailored to the circumstances of the case.
Family arbitration is likely to be a lot quicker than going to court and it can be established in advance whether a possible arbitrator will be able to deal with matters in an expedited way. Although you will need to pay for the arbitrator’s fees and expenses, there may be a saving of overall costs over court proceedings.
It is, however, strongly recommended that each party takes legal advice before choosing arbitration and particularly prior to entering into the arbitration agreement, in order to understand the implications and effect of the arbitration process and the award. Being represented by a lawyer throughout the process may also be the most effective way to present a case and legal arguments.