Publish date

23 April 2024

Frequently asked questions about arbitration in divorce

Q. I’ve been advised that my case may be suitable for arbitration. What is arbitration?

A. Arbitration is an alternative to the traditional adversarial court process. It involves a couple (married or unmarried) agreeing to an independent qualified arbitrator (often a senior barrister) adjudicating disputes between spouses, civil partners and/or parents in respect of children and/or financial issues. After hearing (or reading) all the evidence, the arbitrator settles the dispute by way of an “award” (if settling a financial dispute) or a “determination” (if deciding a dispute involving children).

Q. Why is arbitration becoming more popular?

A. Many people are becoming disillusioned with the court process for various reasons, including delays of often a year or more to conclude the process, costs which are often increased because of adjourned court hearings, the unavailability of judges, or the lack of time available to judges to properly prepare for or deal with a hearing. An arbitrator will be able to give as much time to a case as is needed, without having to share the day with another case.

Q. What control do couples have over the arbitration process?

A. Couples can choose the arbitrator (with assistance from their solicitors), the venue for the hearing and the date and time that the hearing will take place. If the arbitration hearing needs to be postponed, it can often be re-scheduled much more quickly than an adjourned court hearing.

Another huge benefit of arbitration is that the same arbitrator will hear the case from beginning to end. In the court system, it is not unusual for several judges to become involved with one case, so there is no judicial continuity. Whereas the arbitrator will be an experienced family law specialist, some judges’ experience may not be in family law.

The parties can also decide if they wish for their case to be decided upon the arbitrator reading paperwork only (with the barristers making written submissions on behalf of the parties), rather than have the parties giving oral evidence, remotely or in person.

Q. Can I appeal an arbitrator’s decision?

A. A couple sign up to be bound by the arbitrator’s decision, although there is a right of appeal in the same way that there is a right to appeal a judge’s decision within the traditional court system, However, it is very difficult to successfully appeal an arbitrator’s decision before it is made into a court order. Parties attending arbitration should assume they will be legally bound by its outcome.

Q. Is arbitration expensive?

A. The parties will have to pay the arbitrator a fee to determine their dispute, whereas a court appointed judge is free. However, overall, arbitration is more likely going to be less costly than the traditional court process as it is usually concluded more quickly than court proceedings.

Case Study: Experience of Arbitration from the perspective of a Family Lawyer

I recently represented a client where they and their spouse agreed to deal with their financial dispute case, via Arbitration.

The arbitrator was a very experienced barrister, chosen by agreement fairly quickly, based on his experience of financial remedy cases and his availability.

The arbitration hearing took place at the arbitrator’s chambers, rather than in a court building. Each party had a separate room to consider matters, which arose from time to time during the hearing. This flexibility is another advantage of the arbitration process. It was quite the contrast to what is available at most courts, where the parties might have to have discussions along a corridor in the court building.

It was agreed the matter would be dealt with solely on the basis of the documentation, which had been lodged and position statements and oral submissions on the day by counsel. Neither party wanted or needed to give oral evidence.

The matter was dealt with in one day. I have no doubt that this matter would certainly have taken 2 days of court time with the hearing taking place many months later than the date of the arbitration hearing.

The application for family arbitration confirming the arbitrator was signed in April. Directions were agreed between the parties without involvement from the arbitrator. The arbitration hearing took place in early June, just two months after appointing the arbitrator.

The award was converted into a consent order, which was sent to the court in July and approved by a judge in September.  The entire arbitration process from beginning to end was quicker than the time it took for the consent order to be approved.

The cost of proceeding to a final hearing in court would have been at least double the costs incurred to have an arbitrator determine the case. It was a huge success for both parties, in terms of both speed and emotional and financial cost.

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