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When going through a divorce or deciding child arrangements after a relationship breakdown, there are various routes to resolving difficult or contested issues. One alternative to court, for a privately funded family law case in regard to a financial or property settlement and some aspects of children’s law, is arbitration.

Arbitration appoints an independent arbitrator who reviews the facts of a case from each party involved. After considering all information, the arbitrator makes a decision similar to a court judgment but without the lengthy litigation process. Arbitration can reduce delays and provide quicker resolution if both parties are willing to accept the arbitrator’s decision, as it is challenging to contest. Here are some considerations when deciding to opt for arbitration.

The benefits of arbitration

Unlike a court case, you have control over certain factors, such as the timing and the location for the arbitration hearing, which often means it is a speedier and more cost-effective process, especially as costs are shared.

An arbitration might take a few months to reach a final decision, as opposed to the court system where a case can span years. Unfortunately, delays in court proceedings can occur which are completely out of your control, or the control of the lawyers, such as a lack of judges on the day of your court hearing.  Sometimes, this sets a case back a few months or longer.

At what stage of my case should I consider arbitration?

It is a good idea to take advice from your solicitor at the outset on all of the options open to you and your specific circumstances. This way, you will already know whether arbitration is something to bear in mind, and if so, how it works.

In practice, arbitration often becomes a viable choice when an impasse has been reached in negotiations, or court proceedings are just taking too long.  Coupled with the associated costs of delay, you can find yourself in a very frustrating place and this is where arbitration can save the day (and your bank balance).

You can start arbitration whilst there is a court application in progress and there can be a degree of integration with the proceedings, with either:

• the court referring your case to arbitration, or
• the court exercising powers which your arbitrator does not have, by making certain orders along the way.

Is participation mandatory?

No, arbitration is not mandatory at any point during a dispute, but it is a voluntary path encouraged and endorsed by family law professionals and the judiciary.

Some couples value having control over the trajectory of their dispute with a timetable that is predictable or aligns with their own life plans.

Each person needs to willingly agree to engage in the process and to appoint their arbitrator (effectively the judge), who will likely be an experienced practising family lawyer.

Is an arbitration decision legally binding?

After seeing and hearing the evidence you have chosen to put before them, your arbitrator will consider all of the relevant information and come to a decision which is called:

• an ‘award’ in a financial dispute; or
• a ‘determination’ in a dispute about children.

The arbitrator’s decision is final and legally binding on you both. They may announce or publish their decision on the same day as the final hearing, or within a specified and agreed time period afterward.

It will be put in writing, normally with reasons given, and you will have the chance to discuss it with your solicitor.

At the earliest opportunity, the solicitors will send the written decision into the court and request that it is converted into a court order. This will conclude the process for you and your ex-partner and might be the only time the court is involved.

The courts will approve these decisions and uphold them if they are challenged. So, whilst you sign up to a voluntary procedure, before you embark on the journey, it is really important to remember that you are more than likely to be held to the decision made, just as if it were made by a judge sitting in court.

How we can help

Whether you have only just split up with your partner, are at a stage in your legal dispute where things are stagnant, or your court case has been adjourned to another date months away, we can help you decide if arbitration is right for you.

If you are interested in finding out more about arbitration and how it could work for you, please contact one of our Family Law experts today.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.