Arbitration is becoming increasingly common, as an alternative to the court process in addition to using a solicitor to negotiate a settlement, collaborative law and mediation. There are advantages and disadvantages to arbitration and it should be considered alongside the various other ways of resolving cases out of court.
A summary of some of the advantages and disadvantages of arbitration is set out below:
Time: Unlike the court process, which can often take a year or more to conclude, an arbitrator should be able to deal with a matter, in most cases, in accordance with the parties’ proposed timescale.
Costs – As a result of the shortened timetable, the barristers’ and solicitors’ involvement will be less, which in turn, will cover the increased cost of appointing an arbitrator who will also charge for their time, as opposed to a judge who sits for free.
Flexibility – The parties can choose the issues which they want the arbitrator to deal with and hearings can be timed to suit their own diaries, unlike the court process where hearings are fixed by the court. The parties can decide whether attendance in person at a hearing is required, or whether certain issues can be determined by written submissions or even over the telephone.
Expert – Arbitrators have to complete specialist training and they will be family solicitors, barristers or judges with experience of family law. With the court process, it is still possible to have a judge hearing a case with little or no experience of family law.
Choice of Arbitrator – The parties are free to choose an arbitrator that both solicitors and/or their barristers are happy with, which will hopefully results in the parties finding the arbitrator’s decision easier to accept.
Time -The fact that the process is quicker can mean that the parties do not focus their minds on trying to settle a case. Most lawyers would agree that it is often easier for parties to live with a settlement that they have negotiated between themselves. Where a decision is imposed by an arbitrator or judge, it may lead to resentment.
Costs - Although cheaper than the court process, arbitration is normally more expensive than collaboration or mediation because of the arbitrator’s fees. It is sensible therefore, to discuss all options with your solicitor.
Choice of Arbitrator – The parties will need to agree the choice of arbitrator or alternatively ask the Institute of Arbitrators to appoint one. This may lead to people trying to choose an arbitrator who has a particular reputation or is known for being more favourable to a husband or wife, such as when it comes to whether to order a clean break settlement.
A decision is imposed - Parties may be unhappy with all or some aspects of the arbitrator’s decision. Whilst not impossible, an arbitrator’s award is notoriously difficult to appeal. This can lead to resentment and bad feeling going forward, which can impact on the future relationship such as the parties’ ability to co-parent together.