Advantages of Family and Children Arbitration over Court

The parties choose from an approved list of fully qualified Family Law Arbitrators.

The parties are not constrained by Court listings but will agree when the arbitration will be determined. Arbitrations can take place anywhere from solicitors’ offices to meeting rooms at hotels or barristers’ chambers.

The parties choose the extent of the issues to be determined by arbitration. It is not therefore necessary to have to argue about everything if there is only one issue that prevents agreement from being reached.

The parties are not constrained by Court hours of 10am - 4.30pm; nor are they obliged to personally attend if they both agree that the award will be reached in a different way.

This contrasts with Collaborative Law where the lawyers withdraw if the exercise fails, meaning that the parties will lose the lawyers that they have built confidence and trust in and who are familiar with the issues of the case. This can also lead to a duplication in costs and additional delays whilst new representation is found.

Subject to certain protections for the parties, they are free to agree that the arbitral award may be decided by evidence on oath, by oral submissions, by written submissions, by a joint submission requesting a neutral evaluation (in the Form of Private FDR so-called although the parties will be bound by the outcome if they have signed the Arb1).

There are many cases where significant progress can be made and a consensus reached as to the outcome save for one contentious or otherwise apparently irreconcilable problem that holds everything else up; the Court will not always decide to focus on one outstanding issue. In addition, if the Court process has not yet started it may be many months before the Judge is able to indicate the approach of the Court; by that time many thousands of pounds may have been incurred in making full disclosure to satisfy the Court Rules of matters that may actually be of no relevance to the issue in dispute; it is only at a final hearing that the Court can make a binding decision.

In an arbitration focused disclosure, a speedy and relatively cheap method of binding the parties to the determination of the one outstanding issue may well unlock the dispute leading to a swift and cost-effective resolution.

The local court will assist by fast-tracking any arbitral award without the need for the M1 form requiring information for a Consent order. Once the arbitral award is made the parties will be accommodated by the Court to conclude the case in a formal enforceable order without the procedural requirements needed for a financial remedy application.

The price is fixed in advance at the outset by the arbitration agreement. Also, as the process is likely to extend to no more than three months from start-to-finish the parties have a time-cap to their costs. The costs are generally made up of:

• The arbitrator’s fees and expenses -usually borne equally but the litigation funders cover arbitration
• Venue hire and any refreshments
• Legal costs - usually each side bears their own with no contribution to the other’s costs, although it is always open to the parties to agree differently
• Expert’s fees - normally borne equally by both sides, but again this can be varied by agreement

In a typical application through the Court for a financial remedy, there can be no guarantee of confidentiality; in such cases an application must be made to the Judge who will ultimately make the final decision depending on the circumstances. However, an arbitration award is confidential.

As shown by S v S [2014] EWHC 7 (Fam) and subsequent cases, the Courts have made it clear that not only will Family Judges approve IFLA arbitral awards, they will also uphold them.