Family arbitration explained

I am still mid series with “War,” the new TV series about the everyday super rich getting divorced, but at the end of the last episode they were heading off to arbitrate. I imagine that more than a few people are wondering what this is. If that includes you, read on!

Most people are aware that you can go to court to sort out family disputes, but court can be expensive, time-consuming and stressful. That is where arbitration comes in.

What is family arbitration?

Family arbitration is a method of resolving disputes without going to court. Instead the people involved agree to have their dispute decided by an independent expert known as an arbitrator.

The arbitrator listens to both sides, who usually have legal representation, reviews the evidence, and then makes a binding decision known as an award.

How does arbitration work?

The parties have to agree to arbitrate. Yes, I know that Sienna and Dominic have been told that they “have to” arbitrate but in fact it is a purely optional, voluntary process. No one can force you to arbitrate in family cases.

To start, you need to choose the arbitrator. The parties then sign an agreement committing to the process. The legal teams will ensure that each party has made full financial disclosure in finance cases. The arbitrator can give directions about obtaining valuations etc if needed. Unlike in TV land, this process can take many months – especially where there was significant assets, pensions, business interests etc.

Once everyone is ready, the court will hold a hearing where the parties present evidence. After considering all the evidence, the arbitrator issues a written decision explaining the outcome and any remedies or compensation.

Advantages of arbitration

Faster than court

Court cases can take months or years to reach trial. Arbitration is often much quicker because procedures are more flexible, and timetables can be agreed between the parties. Although having said that Brad and Angelina agreed to arbitrate and that hasn’t exactly gone well!

More private

The Press may have access to court hearings. Arbitration proceedings are usually private, which can be attractive to individuals who wish to keep disputes confidential.

Expert decision-makers

Parties choose their arbitrator, so you can be confident of having a judge with the requisite knowledge and experience.

Flexible procedures

The parties can often agree on how they will conduct the process, including timescales, hearing arrangements, and document requirements.

Disadvantages of arbitration

It can be expensive

Although arbitration is often cheaper than lengthy litigation, arbitrators charge fees for their services. However, experience shows that arbitration is much cheaper in most cases than the court process even allowing for the fees.

Limited rights of appeal

One of arbitration’s strengths is finality, but that can also be a drawback. Usually, it is difficult to challenge an arbitrator’s decision, even if one party believes the decision is wrong.

Not always suitable

Some disputes, for example those involving third parties on non disclosure of assets, cannot be resolved through arbitration.

Arbitration compared with mediation

People often confuse arbitration and mediation, but they are different from each other.

Mediation involves an independent Mediator who helps the parties negotiate a settlement. The Mediator does not decide who is right or wrong.

Arbitration involves an independent arbitrator who listens to both sides and makes a decision.

In simple terms: a mediator helps the parties reach their own agreement, whereas an arbitrator makes the decision for them.

Is arbitration legally binding?

In most cases, yes. A binding arbitration award has legal weight, and courts can often enforce it if a party refuses to comply.

Should you choose arbitration?

Arbitration may be suitable if you:

• Want a private process
• Need a quicker resolution than court proceedings
• Want to save costs

However, court proceedings may be preferable if you need legal powers that only a court can provide.

Conclusion

Arbitration offers an alternative to court that can be efficient, flexible, and private. By allowing an independent arbitrator to decide disputes rather than a judge, arbitration has become a popular method for resolving disagreements in domestic settings. While it is not suitable for every dispute, understanding how arbitration works helps individuals make informed choices about how best to resolve conflicts when they arise.

For many people, arbitration sits between informal negotiation and formal litigation, providing a practical route to a legally binding resolution without the complexity of a full court case.

Geldards offers comprehensive out of court options including arbitration and mediation. I am an experienced family law practitioner and part time family judge and a well regarded family arbitrator and family mediator. If you would like advice, get in touch below.

For further information, you can also explore our two-part series on family arbitration, recently published on our Geldards Family Law media accounts.