Family Law Arbitration
Arbitration is a method of dispute resolution which becoming increasingly popular in respect of matrimonial property and finances on divorce, for which it has been available since 2012. Since 2016, private law issues in respect of children can also be decided via arbitration.
Arbitration is a voluntary process of dispute resolution whereby the parties’ dispute is decided by an impartial and independent third party (an arbitrator) instead of a judge. The parties agree to cooperate with the process and may agree to obtain a Consent Order reflecting the arbitrator’s decision which can then be implemented. The arbitrator is chosen by or on behalf of the parties, perhaps for their expertise in a specific area, and their decision can be agreed to be binding. Arbitrators are supervised and trained by the Institute of Family Law Arbitrators.
Arbitration is intended to be binding (ie. a Consent Order will be obtained to allow implementation of the arbitrator’s decision). Non-binding arbitration, however, allows the parties an indication of what the outcome of their matter is likely to be – similar to the Court’s process of giving an indication which is intended to encourage constructive negotiations.
Arbitration can be used at any stage in a dispute but may be particularly suitable in the following situations:-
- Cases where parties want a swift resolution but may not be able to achieve this by negotiation or within the Court’s timetable;
- Cases where confidentiality is important to the parties;
- Issues where legal fees are likely to exceed the amounts in dispute;
- Specific issues which are hindering the overall process of a case;
- Where other forms of dispute resolution, such as mediation or collaborative law, have failed.
The success of arbitration depends on the willingness of everyone involved so may not be suitable in cases where a party, or any necessary witnesses or third parties, are obstructive or un-cooperative. Similarly, arbitration is unlikely to be appropriate in cases where there are issues with non-disclosure, or where any injunctions etc. may be necessary.