Arbitration Advice and Representation

JMW can help you if you are considering resolving a family dispute via arbitration or are already engaged in the arbitration process. Although it is possible to engage in arbitration in person, it is highly recommended that parties to arbitration are legally represented to ensure their best interests are met.

For an informal discussion with one of our expert arbitration solicitors, get in touch today. Simply call us on 0800 652 5577 or complete our online enquiry form to arrange a call back at a convenient time. 

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Arbitration Explained

Arbitration is a form of non-court dispute resolution in which the parties to a legal dispute agree that instead of being decided by the courts, the issues between them will be resolved by an arbitrator. That arbitrator can make legally binding awards and determinations that will, in virtually all cases, be upheld by the courts.

Although it is not right for everyone, arbitration can offer those involved in family disputes more control over the process and a potentially faster outcome than they would get were the dispute to be decided by the court.

  1. Financial matters

    Family law arbitration can be used to resolve disputes regarding financial matters including:

    • Financial provision on divorce or civil partnership dissolution
    • Variation of maintenance orders
    • Claims under Schedule 1 of the Children Act
    • Contested inheritance claims
    • Property disputes between unmarried couples

    There are some restrictions on what arbitrators can and cannot do. For example, they are unable to make awards that bind third parties and cannot make certain types of injunction. However, they have wide powers to make awards and give directions for the resolution of disputes in much the same way as a judge would.

    An arbitration award will need to be turned into a court order to achieve full legal force in many cases, for example where the arbitration relates to financial provision on divorce or civil partnership dissolution. However, the circumstances in which an arbitration award can be overturned by a court are very limited and parties entering arbitration need to understand that they are very likely to be held to the arbitrator's award.

  2. Issues relating to children

    As of 2016, arbitrators can now make determinations in relation to certain issues regarding arrangements for children. This includes disputes regarding:

    • Who a child should live with
    • Their contact arrangements with another parent or family member
    • Consent to medical treatment in non-life threatening situations
    • A variety of questions regarding a child's upbringing, such as choice of school

    As with the financial scheme, there are restrictions as to the arbitrator's powers. They cannot deal with certain types of dispute, including:

    • Questions involving the international movement of children, such as requests for permission to remove a child permanently from the jurisdiction or cases of parental abduction
    • Any other dispute involving the laws of another country

    In all cases an arbitrator can decline to deal with a dispute where he or she feels that it is not appropriate for resolution by arbitration.

  3. The process

    The setup is not dissimilar to what parties would experience if they made an application to the court. However, the parties can ask the arbitrator to restrict their decision-making to a specific element of the dispute, such as the ownership of personal belongings within a divorce scenario. They can also set their own timetable and documentary requirements, provided all parties and the arbitrator agree. It is possible, for example, for an arbitrator to make a decision on the basis of written documents alone without the need for oral submissions.

    Parties to an ongoing court case can ask for their proceedings to be halted to enable them to engage in arbitration on some or all aspects of the case. Courts are likely to be highly receptive to such a request given their stated desire of championing non-court dispute resolution.

    Proponents of arbitration argue that it should be quicker than conventional legal proceedings because the arbitrator is not subject to the workload pressures experienced by the family courts and can act quickly and responsively with the cooperation of the parties. The decision maker's time will have to be paid for, unlike in the family courts where the fee to initiate proceedings will form only a tiny fraction of the overall fees incurred within the dispute. However, with a bespoke process and protection from delays experienced within the court system and unexpected adjournments, overall, costs could be saved.

    Arbitrators can refer cases to mediation if they feel this would assist resolution of the matter. Conversely, mediators can recommend that insoluble issues can be referred to an arbitrator in order to break deadlock in negotiations. As with the court process, an arbitration can be paused at any moment to allow the parties to negotiate direct or through their lawyers.

FAQs

  1. Who will be my arbitrator and what kind of experience will they have?

    Unlike traditional court proceedings where your case is assigned to a particular judge, the parties can choose an arbitrator from the IFLA (Institute of Family Law Arbitrators) Panel. Provided the panel member agrees to the appointment, they will stick with the arbitrator until the case is concluded. This allows parties to select an arbitrator on the basis of their qualifications, experience and approach. Alternatively, the parties can ask IFLA to appoint a panel member for them.

    For their award or determination to be legally recognised, the arbitrator has to be a member of the IFLA panel. Panel members include senior solicitors, barristers, QCs and retired judges with substantial experience of family law. They have to undergo training and accreditation in order to become a panel member.

  2. My husband and I would like our dispute to be decided in accordance with Islamic law. Is this possible?

    The family law arbitration scheme can only resolve disputes in accordance with the secular law of England and Wales. They cannot apply religious principles or the laws of another country.

    Nevertheless, parties can choose to have certain disputes heard by religious bodies such as a Sharia Council or Beth Din. Whilst their decisions will not have the same legal force as an arbitration award or determination, they could prove to be one important factor if the dispute were subsequently to be considered by a secular court.

  3. Is arbitration confidential?

    Yes. Unlike court hearings at which members of the media may be present unless excluded by the judge, arbitration takes place in private. That said, the courts take considerable measures to protect the privacy of children and vulnerable individuals.

  4. Who pays the arbitrator's costs?

    In the normal course of events - as with conventional proceedings - each party will pay their own costs and any joint costs (e.g. experts' fees) will be met equally. The same is true of the arbitrator's fees. It is of course open to the parties to agree a different allocation of legal costs, such as a scenario where a better off party pays some if not all of the other party's costs, including the arbitrator's fees.

    However, where a party has 'misbehaved' within the arbitration, the arbitrator can make a costs award against them. This would include cases where a party has been persistently late or obstructive with producing documents.

  5. My former partner and I have agreed most of the financial details arising from our separation but we are stuck on one particular issue. Can we ask an arbitrator to decide that issue alone?

    Yes. One of the advantages of arbitration is that the parties can tailor-make their process, with the arbitrator's agreement. This includes a request that only a discrete issue be determined.

Why Choose JMW?

JMW's family team is on hand to advise you in relation to all family matters, including those that may be suitable for arbitration. We always do all we can for our clients in order to achieve the very best results. We are approachable and understanding, but take a no-nonsense approach to make sure things get sorted properly and efficiently.

Talk to Us

Find out more about how our arbitration solicitors can help you by getting in touch with the team today. Simply call us on 0800 652 5577 or allow us to contact you by filling in our online enquiry form

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