Family arbitration has been available as an alternative to costly court proceedings for separating couples in this country since 2012 but it is only relatively recently that public awareness of its benefits has grown.

Alternative dispute options originally grew from the need to find a less confrontational process to resolve family disputes and the desire to reduce the cost of court cases, especially for those who were struggling to fund their legal fees as a result of the impact of the cut backs in legal aid.

Family mediation grew in popularity as a more cost-effective way of settling disputes but it still requires the parties to reach an agreement, albeit with the aid of a mediator. Often this is just not possible which is where arbitration may be the answer.

The alternative is Court which is a slow and incredibly expensive process, often taking well over a year and costing eye-watering amounts of money.

The Family Law Arbitration Scheme was launched by the Institute of Family Law Arbitrators (IFLA) to provide an alternative to Court. There are two arbitration schemes: one for finance cases and the other for children’s disputes. Participants can choose their arbitrator and the parameters of what they want the arbitrator to decide.

What is Arbitration?

Arbitration is a form of alternative dispute resolution. The parties agree that the arbitrator’s decision will be binding upon them. The parties also agree on the scope of the arbitration and, together with the arbitrator, they choose the procedure, which may be a formal hearing or a decision made on the basis of written argument.

There is only a very limited right of appeal, for example, if there is a serious irregularity.

Parties can be represented at arbitrations or they may represent themselves.

The Financial Scheme

The IFLA financial scheme covers financial and property issues.

Note, however, that the arbitrator cannot make orders which freeze assets or involve third parties or which impose penalties for not complying with the rules so there are some cases which will be unsuitable for arbitration as a result.

The Children Scheme

The Family Law Arbitration Children Scheme launched in July 2016, providing the option of a quick, cost-effective decision in children disputes. The scheme empowers the arbitrator to determine private law disputes between people holding parental responsibility or those with sufficient interest in the child’s welfare in circumstances where there are no serious safeguarding issues. Some cases are not suitable for arbitration such as where there are safeguarding issues or where there is domestic abuse or mental illness.

Arbitrators have the power to require expert reports to ensure that the wishes and feelings of the child are heard in the arbitration.

Children arbitration can be used to determine or vary child arrangements, decide on contact arrangements, schooling or medical issues and issues concerning removal of children from England and Wales for holidays and for permanent relocation to certain specified countries.

Children arbitration cannot, however, be used to determine child abduction proceedings and disputes concerning life-changing issues.

How Do I Find an Arbitrator and What Happens Then?

www.Ifla.org.uk holds a register of all trained and accredited Family Law arbitrators in England and Wales.

The parties can choose an arbitrator or invite IFLA to choose one for them. Most arbitrators are part-time or recently retired judges or very experienced barristers or solicitors.

Once the arbitrator has been selected, there will usually be an initial meeting to discuss process. The arbitrator may give directions such as for the obtaining of an expert’s report. The parties pay their own legal costs and the arbitrator’s costs.

The case may be then decided at a hearing or proceed on paper only. The arbitrator may hear evidence from parties and from experts and then make a determination that is binding upon the parties.

At the conclusion of the arbitration, the parties will receive a written award (financial scheme) or determination (children scheme) which sets out the reasoning and the arbitrator’s decision. The parties will then ask the court to convert that into a court order, which can be done on a written application.

Conclusion

Arbitration is invariably much quicker and much cheaper than court proceedings. The parties choose their arbitrator. The proceedings are confidential and private. The hearing takes place on a date and at a location to suit the parties. They will have a much quicker and less confrontational outcome than if they apply to court. Overall arbitration has much to commend it.

For more information contact Fiona Apthorpe who is an experienced family judge, family arbitrator, family mediator and family law practitioner.