When clients are unable to reach an agreement about their family law issues, such as separation, financial arrangements or child-related matters, they often face the prospect of lengthy and stressful court proceedings. Whilst there are a range of other non-court-dispute-resolution options available including mediation, collaborative, resolution together, out of court solicitor negotiation, private Financial Dispute Resolution hearings and non-binding evaluation by a third party, sometimes the issues are so entrenched or the personalities of the individuals mean they want their day in court and so a court application often has to be filed.
Arbitration is a form of non-court-dispute-resolution (NCDR) where an independent adjudicator, known as an arbitrator, is appointed to make a binding decision on the issues in dispute. Sometimes the input of the court will still be necessary; for example, if one person is trying to hide assets or is failing to disclose their true financial circumstances. However, arbitration offers a viable alternative that is gaining popularity due to its efficiency, confidentiality and flexibility.
Arbitration enables a dispute to be resolved swiftly and confidentially, and crucially it will help achieve a final outcome because the decision of an arbitrator is final. If a couple cannot reach an agreement out of court and need a third party to make a decision, then arbitration provides a forum to do so. The case is prepared much in the same way as court proceedings, so clients have the benefit of a binding outcome without the protracted nature of litigation, but with a fully prepared case and full consideration of the issues and merits of the case.
Court litigation can be expensive, lengthy and unpredictable - you cannot guarantee which adjudicator you will be before and cases may be heard by different judges or lay-magistrates over time. It is very unusual to be before the same judge throughout the case and some cases are before lay-magistrates. You can spend whole days in a court building and the formal nature of court proceedings often exacerbates stress and tensions between parties, making it harder to maintain amicable relations or heal old wounds.
Arbitration, on the other hand, offers several advantages:
Efficiency: Unlike court proceedings, the arbitration process is relatively speedy and can conclude within 4-6 months compared to potentially 18-24 months for disputed court proceedings.
Confidentiality: Unlike court proceedings, which can be held in public and not protected to the same level of privacy they once were, arbitration is conducted privately. This is particularly beneficial for high-profile individuals or those concerned about sensitive information entering the public domain.
Control: The arbitration process also allows parties to retain greater control over the process, including the choice of independent adjudicator (often also a person who sits as a judge or experienced barrister or solicitor), the schedule of any meetings and, the location where the arbitration takes place. The couple can also choose whether to arbitrate a discrete issue or the whole dispute and whether there should be a hearing to listen to the evidence or if the arbitrator should make a decision on paper.
Cost-effectiveness: Arbitration is typically cheaper than contested court proceedings because it is so much quicker, often being able to reach a final decision within around six months, compared to up to 18 months to two years in the family courts. Whilst you have to pay for the cost of the arbitrator (usually jointly with the other person), overall the length of time between starting the case and reaching a decision is significantly reduced, resulting in a huge cost saving overall.
Recent changes in legal requirements emphasise non-court-dispute-resolution methods like mediation, collaborative law and arbitration. It is likely that many individuals will opt out of the traditional court process and opt for arbitration instead. The courts will expect parties to attempt alternative solutions before pursuing litigation and individuals have been warned they face adverse cost consequences from the court if they fail to do this without good reason.
Arbitration can also be used to determine issues if the collaborative process has broken down. Given these developments and the benefits of arbitration, many individuals are opting for this route instead of a traditional court process. Contact our experienced family team to discuss whether arbitration may be suitable to help resolve the issues in your case.
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