When going through divorce or separation, the different routes to a resolution regarding financial or children matters can seem overwhelming and the differences between them insignificant. However, there are a number of different ways in which family law disputes can be resolved, each with its unique benefits and it is worth considering them properly as they may offer a quicker, cheaper or more satisfactory resolution than the alternatives. This blog will explain the process of arbitration, which can be highly effective and convenient and can be used in both disputes relating to finances and private law children matters, such as residence, contact, leave to remove out of the country and change of name.
Arbitration is essentially a ‘private’ Court process. It is a voluntary process, which means both parties have to agree to arbitrate for it to take place. This is unlike the standard Court procedure where one party can apply and the other party is automatically obliged to take part in the process. Once the parties have agreed to arbitrate, the process can only come to an end by both parties agreeing to end the process or the arbitrator stating that the process has ‘broken down’ and cannot proceed.
Once arbitration has been chosen as the parties’ desired route, they will agree to appoint an ‘arbitrator’, who is a suitably qualified individual appointed to act as the ‘Judge’ for their particular case. The decision made by an arbitrator is binding. A party can only dispute the decision if the arbitrator went beyond the powers they have by ordering things they do not have the power to, if there was serious procedural irregularity or the decision raises a question of law in that it misapplied the law or it is outside the very wide discretion that the Court gives a Judge. These are very high hurdles and make it very difficult for anyone to set aside a decision made by an arbitrator.
In summary, the benefits of arbitration are:
- Specialist – choosing to arbitrate means that you get to choose who it is that makes the decision in your case. This means that you can choose a Family Law specialist or someone that has experience in dealing with the particular issue in your case, whereas if you use the Court process you will be left with the Judge who is available on the day, who might not be experienced in family law.
- Speed – the arbitration process is often a lot quicker than going through the Court process as you can arrange hearings around the arbitrator, and your representative’s availability, as opposed to being beholden to the Court’s availability, which is notoriously limited.
- Cheaper – whilst parties engaging in arbitration will have to pay the fee for the arbitrator, arbitration can end up being cheaper than going through the Court due to the efficiency of the arbitration process.
- Tailored – the arbitration process will only gather information and make decisions on those issues which the parties, their legal representatives and the arbitrator agree need to be resolved. This focussed approach is often the reason why those engaging in arbitration spend less than those going through the Court process.
Whilst arbitration may not be suitable for all cases, it is at least worth considering it as an alternative. I am an arbitrator and have also acted as the solicitor for one of the parties in several arbitrations. If you are interested in using arbitration or would like advice about your family law dispute then please contact us on 01908 693000.
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