Arbitration

This is a scheme under which disputes with a family background (currently of a financial or property nature) may be resolved by arbitration. The scheme is governed by the Institute of Family Law Arbitrators (IFLA). All scheme members must maintain membership of the Chartered Institute of Arbitrators and the scheme is administered by Resolution.

The essence of arbitration is that parties who are in dispute agree that their dispute will be resolved by a third party who they have chosen – the arbitrator. The decision of the arbitrator then binds the parties and is enforceable through the Courts like a judgment.

Modern arbitration originated in specialised trades where the nature of the dispute meant that it was more efficient to have it decided by a commercial person frequently, another trader, who is familiar with the language and customs of that trade. It has therefore been frequently used in insurance, shipping and construction both in consumer and international commercial disputes. It also lends itself extremely well to family law issues.

A significant difference between arbitration and the traditional Court process is that many aspects of the arbitration process are governed or influenced by the agreement of the parties. The parties can choose their arbitrator (either directly or through IFLA), the type of procedure to be followed and the venue and timing of how the arbitration is to be conducted.

With co-operation, the parties are able to make sensible choices tailored to their particular dispute requirements which results in the process working quickly and cost effectively for them.

One of the major advantages is that it is a private process and the arbitrator’s judgment, called an Award, is published only to the parties. It is an adjudicated process meaning that it offers finality as the award can be enforced by asking the District Judge to convert it into a Court Order.

An Arbitrator can be appointed either by the parties making direct contact and asking the Arbitrator to act for them or by going to the Chartered Institute of Arbitrators in Bloomsbury to ask them to contact the Arbitrator of their choice. The Institute also hold a register of all panel Arbitrator members and can suggest an Arbitrator who has an appropriate specialisation or is geographically local to the parties who want to arbitrate. In any of these three options, the Arbitrator and the parties sign a Form ARB1 which forms the contract between them and in which the parties confirm that their issues will be bound by the arbitration process.

The process itself deals with exactly the same issues as the family Court does in financial matters and the Award made by the Arbitrator is based upon exactly the same factors as a District Judge will consider to make a Court Order. The law involved is identical. However, Arbitration has the following advantages:-

THE ADVANTAGES

Continuity of one Arbitrator throughout the process in contrast to a Court system in which three different judges could be involved.

Party autonomy in contrast to the District Judge having total control of the decision making.

Speed, efficiency and confidentiality. Arbitration hearings can be held in private venues e.g. offices, hotels and are not restricted to Court buildings which are frequently overcrowded and lack privacy.

Certainty of outcome – all Arbitrators are long experienced family lawyers with high levels of specialisation whereas in the Court system District Judges sometimes come from areas of legal practice other than family law.

In addition, the process is based on traditional family law as used daily in the family Court and provides finality in exactly the same way as the Court system.

With the withdrawal of public funding for family work, it is important to have a system where the parties can control their legal expenditure yet still have an effective resolution and this process is becoming more and more popular as a result of the economic climate. It has been established in Scotland for the last 10 years and is gaining momentum in England and Wales.