Family arbitration is an alternative means of resolving disputes relating to finance or property outside of a formal court process. Arbitration has been used extensively to resolve commercial disputes in the past but has never been applied to family disputes in this manner.
Launched in February 2012 by the Institute of Family Arbitrators, the Family Law Arbitration Scheme is rapidly growing in popularity and prominence, enabling couples to reach agreement in an appreciably quicker and less acrimonious manner than before.
The scheme covers: financial disputes arising from divorce; claims on inheritance from a child, spouse, etc; financial claims made in England and Wales after a divorce abroad; claims for child maintenance between unmarried parents; disputes about ownership of a property between cohabiting couples and civil partnership financial claims. Disputes will be resolved exclusively by applying the laws of this country, in the same way as the Family Courts.
The process as set out in the Family Law Arbitration Scheme is relatively straightforward and full details can be found at www.ifla.org.uk.
There are significant benefits to entering into an arbitration agreement:
The parties have a choice of highly experienced family law solicitors and barristers who are accredited arbitrators and deal with all stages of the process from start to finish. Subject to their availability and agreement, it is possible to set a timetable for the process which can often be much quicker than lengthy and rigid court procedure.
In many cases, the arbitration process is significantly cheaper than court proceedings, although there is an arbitrator’s fee to pay and the cost of venue hire.
The procedure is flexible and parties are able to agree the scope of the arbitration; either limited to resolution of a specific issue or the entire dispute. Arbitrations can be completed on paper if the parties agree.
The entire process is confidential by its nature and this is reflected in the rules.
The Process of Family Arbitration
The parties complete a summary of the issues to be arbitrated and agree that the arbitrator’s decision is binding.
A suitably qualified “arbitrator” is appointed and following agreement to his or her terms, the arbitration begins.
The arbitrator contacts the parties with a view to progressing the arbitration; by agreement or the arbitrator’s direction. The parties are invited to put forward their proposals at the outset of the process and then the arbitrator will make directions for the procedural steps.
Adjournment of court proceedings
Family court judges are aware of the benefits of arbitration and where proceedings have already been commenced they have the power to adjourn a case to allow an arbitration to be entered into. If the process fails to produce an agreement, the proceedings can be resumed or the terms of any agreement reached can be formalised into a court order.
While the parties do not require lawyers to accompany them to an arbitration meeting, it is recommended they take legal advice before entering into an arbitration agreement to understand the implications and effect of any arbitration award that is made at the conclusion of the process.
An arbitrator’s powers
Arbitrators have a number of powers under the Scheme including:
• To decide what issues should be covered
• To decide what directions are required to manage the arbitration; such as concerning evidence and whether an oral hearing is necessary
• To make interim orders; e.g. maintenance and directions to preserve property
The costs of a family arbitration
In general, the parties will agree an arbitrator’s fee at the outset of the arbitration and share the cost equally although the arbitrator has the power to order one party to pay more than an equal share in the case of any misconduct during the arbitration process.
The parties will each pay separately for any legal advice received during the process.
The making of an award
At the conclusion of the process, or whenever an agreement is reached, an arbitrator will issue an “award” which is binding as between the parties.
In order to encourage spouses and lawyers to engage in the arbitration process, a short-term introductory offer is available whereby accredited Panel Arbitrators will take on appropriate cases for a maximum fee of £1,500 (plus any disbursements), provided the arbitration is commenced before the end of this month.
Should you require any further information on family arbitration, please ensure that you receive the very best legal advice from Major Family Law.
Joanne Major is owner of Major Family Law, the Divorce and Family Law Specialists.
Tel: 01661 824582 www.majorfamilylaw.co.uk.