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Out of Court Settlements: Arbitration

Lyndon B. Johnson

“Yesterday is not ours to recover, but tomorrow is ours to win or lose.”

When a marriage, civil partnership or cohabitation arrangement breaks down, it will help both parties to resolve their issues without the cost of expensive, contentious litigation. 

Issues over finances and/or the children can be resolved using one or more types of Alternative Dispute Resolution (ADR).

Sadly, our court system is slow and therefore expensive.  Where it is impossible to reach a conclusion through the traditional type of ADR, mediation or negotiation, there is still the option of appointing a Family Arbitrator to decide your differences for you.  

Reaching an agreement to arbitrate will produce a final result within weeks rather than months or years.  It will avoid the need to go to court.  You can choose the Arbitrator or ask the Institute of Family Law Arbitrators (IFLA) to choose for you.  All Arbitrators are suitably qualified family law specialists or retired or part-time family judges.

Who will be my arbitrator? 

You are guaranteed the same Arbitrator throughout.  In the court system there is no such guarantee as it is too stretched to provide such a service, indeed in matters concerning your children your case can be decided by a bench of lay magistrates. There are also part-time judges sitting within the court system who do not specialise in family work. 

If you decide to arbitrate you and your ex will enter into an agreement to appoint an Arbitrator.  An Arbitrator can adjudicate a dispute concerning finances or children. The agreement is a contract to be bound by the Arbitrator’s decision. The decision is called an Award in a financial case and a Determination in a case concerning children.

Unlike proceedings in court, arbitration is private. Your case will be totally confidential. 

Arbitration Fees

Although the Arbitrator can charge a fee, costs can be reduced by agreeing to restrict the amount of disclosure and the scope of the dispute.  You are in charge of the timetable and there is no risk of adjournments and numerous hearings, nor are there court fees to pay. 

If you are interested in using this process, there is more information available on the IFLA website.

If you choose to use this system you can be assured that the President of the Family Division has recognised the scheme and there is a set procedure through the courts to ensure that the award or determination becomes an enforceable court order.    Here at McAlister Family Law we have a trained Arbitrator, Liz Cowell.  She can advise you on the subject as well.

Example:

A couple who had agreed exchange of disclosure but during mediation were unable to agree on the share they would each receive following the sale of the matrimonial home, appointed an Arbitrator to decide their case.  If they had gone to court they would have had to wait at least three months for a first directions’ appointment.  It would have been necessary to prepare fresh disclosure.  

It is possible to turn the first appointment into a mediation hearing known as a financial dispute resolution hearing, but if they had been unable to resolve matters at that stage - which was likely - they would have had to wait a further four to 10 months for a hearing.  By choosing to arbitrate they had a decision within two months.  They did not need to prepare any further disclosure and they avoided the stress of a contested hearing at court.  Significant costs were saved with only the Arbitrator’s fee to pay.  Both parties were satisfied with the Arbitrator’s decision which was quickly turned into a court order.   

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If you are interested in using this process, contact our expert team today.

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