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In October 2021, the President of the Family Division, Sir Andrew McFarlane, published his report “Confidence and Confidentiality: Transparency in the Family Courts”. This report advocated for greater transparency in the family court to enhance public confidence. However, such a shift threatens the historic privacy that many clients often find comfort in.
Therefore, it is anticipated that forms of alternative dispute resolution will become more popular, particularly arbitration.
Arbitration is an alternative to resolving disputes through the court system. It is a consensual system whereby all parties must agree to submit the dispute in question to the arbitrator. Like a judgement, the decision of an arbitral tribunal is final and binding. However, arbitration differs fundamentally from the court system in the following ways:
The process differs from mediation in that rather than focusing on helping the parties to reach agreements, an arbitrator will listen to both viewpoints and concerns and will make a decision based on what they think is the most suitable way to move forward.
Arbitration can deal with the full range of family law financial issues including:
Arbitration can also deal with limited children issues including:
The first step is to choose the arbitrator. Parties can either choose from the list provided by the Institute of Family Law Arbitrators (IFLA) or they can ask the IFLA to choose one for them. Parties will want to take into account the experience of the arbitrator, location and costs.
Firstly, there will be an introductory meeting with the arbitrator, either in person or by telephone, to ensure that everyone understands the process and the issues that need to be addressed. Parties will then probably have a preliminary hearing to deal with the fact-finding exercise and valuations etc.
There will then be a final hearing before the arbitrator makes the decision. In more complex cases, other hearings may be needed as you go along.
After the arbitrator has made the decision, the parties will ask the court to confirm it in a formal court order. This is important to make sure that the decision can be enforced if your partner does not comply. It is also an essential requirement if the decision includes a pension sharing order.
Arbitration enables families to resolve disputes more quickly, confidentially and in a more flexible and less formal setting than a courtroom.
In the initial meeting with the arbitrator, parties can agree a timetable that suits them. This means that the dispute could be resolved within weeks (rather than the 18 months to 2 years which is typical in the court system because of current delays).
The speed at which the dispute can be arbitrated will crucially offer significant savings in cost and stress. The flexibility of choosing the timeframe, venues or whether to meet face to face or in writing only also gives parties greater control over the process.
The Parties can you choose the arbitrator to handle their dispute. This allows parties to have complete assurance that the arbitrator specialises exclusively in the area of family law they need and has the necessary expertise to understand all the nuances involved.
However, many people are wary about arbitration as an alternative to Court, frequently because they are concerned about the inability to appeal a decision they do not agree with. It is only possible to appeal the decision if the arbitrator has made a mistake or misapplied the law, not just because you do not like the outcome. It is prudent to point out though that this is the same for a decision made by the Court. The appeal process following an arbitration can be by agreement between the parties if it is agreed there has been a mistake.
Also, as it is a private process it must be privately funded by the parties. The preparation costs and the need to fund the attendance of a barrister are similar to that of a final hearing, but you also have the additional costs associated with paying for the arbitrator.
If evidence is required from a third party, such as a new partner, social worker or other form of expert, they cannot be forced to provide documents to aid the process. This can result in a lack of transparency and uncertainty.
Uncertainty is furthered by the lack of enforceable disclosure. Unlike under the court system, parties are under no obligation to provide full and frank disclosure which means that one party could be hiding assets that would not be accounted for in the final decision.
Glanvilles' consider all forms of dispute resolution and will often advice clients to consider mediation and try negotiation before resorting to the courts or an arbitrator for a decision. If you decide on arbitration your lawyer will prepare your case to present to the arbitrator and support you through the arbitration process. If necessary, they will also advise on the selection of barristers.
If you require further legal advice, please contact one of our experienced solicitors by emailing firstname.lastname@example.org who would be happy to assist.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice, and should not be relied upon as advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. All content was correct at the time of publishing. Legal advice should always be sought in relation to specific circumstances.