Family Law Arbitration
23 / 10 / 2019
Upon divorce (or upon the dissolution of a civil partnership) the parties have potential financial claims against one another, namely for example, for property, lump sums, maintenance and pensions.
In relation to how a financial settlement may be reached, this can be either directly, or through mediation (whereby an impartial third party would sit with both parties, encouraging them to negotiate in good faith to reach a resolution to the issues), negotiations between solicitors, Court proceedings or arbitration (the latter if both parties were willing to sign up).
In respect of family law arbitration, as the Institute of Family Law Arbitrators explain:
“Arbitration is a form of dispute resolution which takes place outside a formal court room. The parties enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to adjudicate a dispute concerning finances or children. They agree to be bound by the reasoned written decision of the arbitrator. The arbitrator’s decision is called an Award (finances) or a Determination (children)”
The main advantages are said to be:
Being able to choose the identity of the arbitrator – knowing who will deal with the case and knowing that they have the requisite experience.
Continuity – having the same person throughout the proceedings.
Deciding the remit of the issue you want the arbitrator to decide – it could be the overall financial settlement or it could just be a discrete issue – such as the quantum and term of spousal maintenance.
You can decide on the format of the proceedings – the level of financial disclosure and how evidence will be given or submitted.
Flexibility of days and times during which the mediation takes place.
Speed of the proceedings – it usually being far quicker than Court proceedings.
The main disadvantages are said to be:
• The cost – you will pay for the arbitrator, whereas you do not pay for a Judge’s time (there is however a small Court fee for financial remedy proceedings).
• The arbitrator cannot for example, freeze a parties assets.
• Some matters are not suitable for arbitration (such as children matters where there are safeguarding risks).
Arbitration can also be used in children matters (where appropriate).
At Wedlake Bell we can consider with clients whether arbitration may be appropriate in their matter.