What is family arbitration?
Family Arbitration is a form of formal dispute resolution. The parties enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to adjudicate their dispute and make an award.
The key elements of family arbitration are:
- the decision of an arbitrator is binding upon the parties in the same way as a court order (subject to ratification). This provides the parties with certainty of outcome.
- there are limited grounds of appeal;
- an arbitration award does not oust the jurisdiction of the court. The court retains the power to ratify the arbitration award and therefore the award still needs to fall within the parameters of section 25 of the Matrimonial Causes Act 1973 or Schedule 5, Part 5 of the Civil Partnership Act 2004.
Benefits of arbitration
Key benefits of arbitration are:
- the parties choose their arbitrator from the family arbitration panel;
- the same arbitrator will usually deal with the case from the beginning until its conclusion;
- the parties have more autonomy than they would in court proceedings and arbitration allows for flexibility, including whether the entirety of the case or just a discrete issue is to be decided by an arbitrator;
- the parties can be more creative in arbitration as to the process and timetable. The parties can agree for issues to be dealt with on written or oral evidence;
- confidentiality is guaranteed within arbitration, which can be of particular importance in high-profile cases; and
- the arbitration process can be extremely informal, if that is what the parties wish
What cases are suitable for arbitration
The following types of family cases can be dealt with within arbitration:
- financial remedy proceedings;
- financial proceedings after an overseas divorce;
- Schedule 1 Children Act proceedings;
- Cohabitee property disputes under the Trusts of Land And Appointment of Trustees Act 1996 (TOLATA);
- any issue between parents or other persons holding parental responsibility or with a sufficient interest in a child’s present or future welfare;
- a dispute surrounding where a child should live, including shared living arrangements;
- issues regarding the time a child spends with each parent, including holiday arrangements;
- disputes concerning education;
- disputes concerning routine and non-life threatening medical treatment; and
- with effect from March 2020, an application to remove a child from England and Wales, whether permanently or for a temporary period (eg for a holiday) to another country.
Our role in arbitration
When we are appointed as solicitors to represent a client through the arbitration process, our role includes:
- explaining how the arbitration process will work;
- assisting with the selection of an arbitrator;
- determining the issues in dispute and considering the appropriate procedure;
- advise outside of the arbitration process and/or represent clients within arbitration;
- advise on appropriate directions to be made within arbitration;
- collate evidence on behalf of the client;
- draft statements and submissions;
- attend conferences and arbitration hearings;
- consider whether representation by a barrister is required; and
- explain the outcome of the case i.e. the award given by the arbitrator
Our team of family law solicitors can help with any questions you might have about the arbitration process. For a free initial discussion, you can contact our offices in Leeds, Harrogate, London, York and Sheffield, or email enquiries@consilialegal.co.uk
