InsightsInsight - Family and Divorce - POSTED: April 8 2019
Is arbitration the future when resolving family disputes?
Family arbitration is an alternative dispute resolution method to the court process that couples can use to reach an agreement when considering either financial or children matters when separating or getting a divorce.
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What is arbitration?
Family arbitration is an alternative dispute resolution method to the court process that couples can use to reach an agreement when considering either financial or children matters when separating or getting a divorce. It generally enables couples to resolve disputes more quickly, confidentially and in a more flexible and less formal setting than a courtroom.
How is the arbitration process different?
Rather than a judge being assigned to hear a case, in arbitration, the parties agree to appoint an arbitrator who, like a judge, will hear the evidence and ensure that financial disclosure has taken place. This means that parties can choose an arbitrator with an appropriate degree of practical experience who will then deal with all stages of the case from start to finish.
Whilst the process bears similarities to the court process and the parties will still provide financial disclosure which the arbitrator will then consider, the arbitration process is more flexible and the parties can agree to limit the disclosure to be considered as well as limit the number of hearings to take place, which usually results in the process being considerably cheaper than court proceedings.
Although in court proceedings one party makes the application, both parties must agree to use the arbitration process as once it has started one party cannot back out without the other’s agreement. When a ruling is made by an arbitrator it is known as an “award” and both parties agree at the outset to accept the award. This is markedly different to an order made in court proceedings.
Is the award legally binding?
When an award is made by an arbitrator it is considered binding on the parties who can then apply to the court for the award to be converted into a court order. This position was reaffirmed in the recent case of BC v BG . In this case, the parties had originally taken their dispute to court, but a hearing that had been listed didn’t go ahead because the judge was ill. As the parties were reluctant to wait several months for a new court date, they instead decided to use the arbitration process. Although both parties signed a form confirming that they agreed the award would be final and binding, the wife sought to appeal the arbitration award once it was made.
When looking at the case Ms Clare Ambrose, sitting as a Deputy High Court Judge, confirmed that there is only a limited right to appeal against the arbitrator’s decision and dismissed the wife’s appeal stating that “it would be exceptional for a court to refuse to approve a consent order containing an award”.
Parties considering using this process can, therefore, be reassured that an arbitrators decision is binding with the same degree of finality as a court order.
We are happy to advise on the arbitration process and whether or not we believe it will work for you in your circumstances. Please contact our experienced team of solicitors on 01622 690691 to make an appointment.
This content is correct at time of publication
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