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Divorce law blog


29/03/2012   By: Nigel Shepherd

Monday 26 March saw the formal launch in London of the new family law arbitration scheme. This is the latest option available to deal with financial family disputes.

Arbitration has been around a long time as a way of resolving commercial disputes, for example in construction contracts, but now it’s available to couples going through a family break-up. The couple can choose the arbitrator or ask for one to be selected from the list of around 35 who have qualified up to this point, all of whom are very experienced family lawyers.

The arbitrator in effect acts a judge to rule on the issues in dispute. At the end he or she produces an award which the couple agrees to be binding on them and which will be reflected in a court order. The courts are expected to take a tough line on people who sign up for arbitration but subsequently try to challenge the award. The right to appeal will be limited to points of law and the couple can even agree to exclude the option of an appeal entirely.

Arbitration is different to mediation or collaborative law in that the decision is imposed on the couple rather than being one that requires them to reach agreement, although of course they can settle at any stage just as they can in court proceedings. The main advantages of arbitration are:

  • Choice of arbitrator – the same experienced professional will deal with every stage of the case so that there is consistency and continuity.

  • Choice over the issues that the arbitrator deals with. It could be that you want all of the financial consequences of the relationship breakdown to be ruled on. Equally, it may be that there is only one sticking point that needs a quick and simple decision. It may be that you are dealing with things in mediation but you’ve got stuck on an issue that you just can’t sort out. You don’t want to throw away all the good work that you’ve done, so you could ask the arbitrator to decide that issue and then return to the mediation to finalise everything. Arbitration is flexible.

  • Choice over the procedures. Rather than the fixed rules that apply in court proceedings around disclosure and the hearings that are required, the couple can choose to limit the paperwork or have a decision made without any actual face to face hearings at all in straightforward cases. The only thing that cannot be changed is that the arbitrator has to apply English family law legislation and principles.

  • Speed – court cases can take months or even years. The situation is going to get worse with the courts becoming ever busier. With arbitration the time it all takes is down only to the availability of the arbitrator and the couple.

  • Convenience – arbitration hearings can take place at a venue and at a time to suit everyone.

  • Privacy – there are no court hearings where journalists are entitled to be present and no court papers, reducing the risk of compromising confidentiality.

  • Cost-effectiveness – although you have to pay for the arbitrator it will often cost less than court proceedings. This is due to the ability to reduce the procedural formalities and the fact that you won’t have to update all of the valuations and other financial information as a result of a year’s wait for the next hearing.

Arbitration is a new and exciting option. It won’t be right for everyone or every situation, but it has real advantages over court proceedings when a decision still needs to be made on something that you haven’t been able to negotiate yourselves or through mediation, collaborative law or solicitor negotiation.

Roger Bamber and Nigel Shepherd are Mills and Reeve’s trained arbitrators.

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