An increasingly common alternative to resolving disputes through litigation in the Family Court, arbitration is a potential route for couples to resolve their disputes more quickly and amicably outside of the oversubscribed court system.

In this article, Ben Connor answers frequently asked questions on arbitration and explains how it can benefit separating couples and parents in dispute.

What are some alternatives to traditional family litigation?

The best initial approach for separating couples, or couples disagreeing over arrangements for their children, is an informal discussion. The more that can be agreed through open dialogue, the better.

Common alternatives to court proceedings following this stage include:

• Arbitration
• Mediation
• Collaborative law

These are all forms of alternative dispute resolution, or ADR.

What is arbitration in family law?

Family arbitration is a form of private dispute resolution. In arbitration, the involved parties agree to appoint a qualified individual to resolve their dispute. They acknowledge that the arbitrator’s decision will be final and binding and the award will be converted into a court order for enforcement purposes.

While the parties can agree on the procedural format, the arbitrator has broad discretion and significant authority over case management. The arbitrator will address any procedural or substantive issues that the parties cannot resolve, including matters related to evidence, disclosure, written submissions and the final hearing. Additionally, the arbitrator can issue interim awards, such as for temporary maintenance, and appoint experts when necessary.

What is the advantage of arbitration in family law?

Choice of arbitrator: Unlike family courts, where parties cannot select their judge and rarely experience judicial continuity, arbitration allows parties to choose their arbitrator. This ensures a carefully selected specialist with relevant experience will handle the case from start to finish, providing reassurance to both parties and their lawyers.

Confidentiality: Arbitration is inherently confidential, unlike court proceedings where cases may be heard in open court with potential media coverage. This confidentiality helps separating couples avoid the stress of unwanted public attention, ensuring that private family disputes remain private.

Speed: Arbitration can be significantly quicker than the in-court process where delays in listing court hearings can mean that it can take as long as 18 – 24 months to resolve a dispute. The arbitrator will generally have greater availability than the court list and will therefore be able to accommodate both planned hearings, and any interim disputes that arise, more quickly.

Flexibility: Arbitration offers flexibility in both approach and scheduling. Parties can arrange hearings with the arbitrator at a time which suits them and this control over the timetable often results in a quicker resolution compared to the congested court system. Parties also retain the flexibility to agree to arbitrate the entire dispute, a certain phase of the proceedings or a specific interim issue, whilst they can also agree to amend procedural steps.

Efficiency and cost: Although parties must pay the arbitrator’s fees, the ability to limit disclosure and streamline the dispute can lead to significant time and cost savings. As the arbitrator is effectively acting as a privately hired judge, the arbitrator will have sufficient time set aside within their diary to read the case documents, a luxury which judges in the family court system rarely have, which can result in more efficient and effective hearings and processes.

How does arbitration compare to mediation?

Mediation is a voluntary process that, much like arbitration, is promoted by the courts as an alternative to litigation. During mediation, you and your partner will meet with a family mediator to discuss and resolve your issues.

The mediator’s role is to facilitate dialogue, clarify issues and explore settlement options. Unlike in arbitration, a mediator cannot impose a decision on you and your partner, so any agreement reached is mutual. If an agreement is reached, this will be recorded in non-binding heads of agreement, which can then be converted into a legally binding document if required. A lack of a definitive decision in mediation can be considered a relative disadvantage when compared to arbitration.

Should all disputes be mediated or arbitrated and not go to court?

Not every case will be suitable for alternative dispute resolution – examples include complex cases involving allegations of domestic abuse or child cruelty. Whilst the family procedure rules now require parties to meaningfully engage in non-court dispute resolution, ADR requires the agreement of the parties which is not always possible. In those circumstance, court litigation may be the only option.

Can I do arbitration on my own, or do I need a lawyer?

You can represent yourself in family law arbitration without a lawyer. However, it is important to understand that arbitration is a complex and ultimately binding process that can significantly impact your rights and obligations.

We would always recommend seeking expert advice from a family lawyer who has dealt with cases similar to your own. This will help when navigating legal intricacies, preparing your case and ensuring your interests are adequately represented.

Is arbitration more cost-effective than litigation?

More often than not, arbitration is a speedier process than engaging in the court process as the parties largely retain control over the timetable of the arbitration. Therefore, whilst there is a cost associated with instructing an arbitrator, the speed at which settlement is achieved often results in lower fees. The family courts are oversubscribed and actively encouraging couples to consider ADR, not only  as a means of saving time and expenditure, but also to reduce the inevitable and emotional cost of drawn-out court proceedings.

Concluding thoughts

Partner Sam Longworth says: “Family arbitration enables couples experiencing family breakdown to resolve disputes more quickly, confidentially and in a more flexible manner. The parties control the procedure to a far greater extent than in court proceedings, which can be empowering for individuals and often results in a more swift and amicable resolution outside what can be an emotionally challenging, and often combative, family court experience.”