If you’re in a position where you can’t agree certain divorce issues with your ex-spouse, but you would like to keep matters out of court, then arbitration is one possible option. When you choose arbitration you and your ex appoint a qualified arbitrator. After one or more hearings this professional makes an award which is binding on both of you. So, when can you use arbitration in divorce cases? What are the advantages of arbitration? And how does arbitration work? Keep reading for answers to these questions and more.
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When can I use family arbitration?
Family arbitration normally occurs if you have been unable to come to an agreement with your ex-partner through mediation, collaborative law, or through discussions between your respective solicitors. Arbitration is not a ‘first step’ in the divorce process, it is a latter stage option you might want to consider if it appears likely that your case will go to court to be resolved.
Typically, arbitration can be used to resolve two types of issue:
- Matters involving your children. This can include the choice of school, the provision of school and university fees, relocation of children in England and Wales, child maintenance payments, contact and living arrangements, and provision/housing for a child with special needs.
- Matters involving your finances. This can include the division of complicated financial assets, financial claims, splitting pensions, and property ownership disputes.
Arbitration can also be used in the case of a dissolution of a civil partnership, or even to deal with a dispute over a family pet.
When can’t I use family arbitration?
Family arbitration is unsuitable if there are serious issues or complications regarding your child/children. For example, you can’t use arbitration if your case includes serious allegations or safeguarding issues, or if you want to relocate internationally.
What’s the difference between using family arbitration and going to court?
If you and your former partner cannot agree on matters such as the division of assets or contact arrangements for children, your case may not have to end up in court.
Arbitration is a possible alternative. The main difference from family court is that arbitration is confidential. This makes it advantageous if you are a high-profile person or you simply want to keep your arrangements out of the public arena.
Arbitration gives you more control over the way that the process is handled, as you can choose an arbitrator and select convenient dates and times for hearings. It can also often be quicker and cheaper than going to court.
What is the difference between mediation and arbitration?
When you attend mediation, a neutral third party will help you and your ex-partner to resolve your dispute without resorting to litigation.
A mediator has no power to impose a settlement and instead helps you and your former partner to agree solutions between yourselves. The process is not binding until you reach an agreement, which can then be enforced as a contract.
In contrast, arbitration is similar to court proceedings. The arbitrator hears the evidence from each side and then makes the decision, which is legally binding on both parties.
Arbitration and mediation can work in partnership. For example, your arbitrator may suggest that mediation would benefit you and they may recommend this. Conversely, a mediator can recommend arbitration if you fail to reach agreement on all matters through mediation.
What are the advantages of arbitration in a divorce?
There are several advantages of using arbitration for your divorce:
- Speed – using arbitration is often a quicker process than going to court. Arbitrated cases can be resolved within six months, whereas the court process could take 1-2 years, and sometimes longer
- Cost – arbitration is often cheaper than going to court, particularly for complex cases.
- Convenience – you can arrange arbitration hearings at times and locations that are convenient for you.
- Confidentiality – arbitration is conducted in private, away from the public and press. You can keep the details of your case out of the public eye.
- Choice – you can choose the arbitrator that is best suited to dealing with the issues you want to address.
What are the disadvantages of divorce arbitration?
While there are several good reasons to choose arbitration, you should take the following into consideration:
- You must agree at the start of arbitration that you will accept the arbitrator’s decision. The final award is binding on both parties and cannot be appealed except in exceptional circumstances (see the section below regarding challenging a decision).
- The process is not as rigorous as a court would demand. If one party was of the mind to hide assets or be economical with the truth, the less formal process of arbitration could play into their hands.
- If evidence is needed from a third party then the arbitrator has no power to force a new partner, bank or employer to provide documents to support the arbitration process.
Who will my arbitrator be?
One of the advantages of arbitration is that you can choose the person who arbitrates your case.
Arbitrators are experienced family justice professionals who have successfully completed a family arbitration training course. They will also be members of the CIArb, the professional body for arbitrators.
Your arbitrator will oversee the whole process, meaning that you will have the same arbitrator for all your hearings.
How do I find an arbitrator?
You can find an arbitrator though your own solicitor or through the Institute of Family Law Arbitrators (IFLA). Often the option of arbitration will be one that’s suggested by your solicitor if they envisage your case going to court.
Everyone who is qualified to act as an arbitrator is registered with the IFLA. Most arbitrators will have a link to their own website or profile so you can find out more about their experience and areas of expertise.
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How do I start the arbitration process?
Once you have appointed an arbitrator, both you and your ex-partner sign a form, downloadable from the IFLA website, which sets out the nature of your dispute and forms the basis of the arbitration agreement. This also confirms that your children will be safe from harm when deciding the arrangements for them.
You must confirm that you understand how arbitration works and that, while the process is ongoing, that you won’t seek to start court proceedings. You also confirm that you understand that the arbitrator’s final decision is binding on you both.
How does arbitration work?
An arbitrator will generally suggest an initial meeting to discuss the nature of your dispute. This ensures that everyone understands the process and the issues that you want to address, and it also gives you the opportunity to meet the arbitrator.
The arbitrator will then hear arguments from both parties. The process itself depends on the nature of the dispute and how you want to deal with it. Both parties can be present at a series of hearings, or it can be done in writing. There is also greater flexibility in what you want agreed and how. For example you may only want to use arbitration to agree one specific financial arrangement, or you can use arbitration to agree everything. You can also agree what documentary evidence you need to produce to make your case. If both parties are happy to use simpler or perhaps more specific evidence, this is fine. Each couple can approach arbitration in a way they agree works for them.
There will then be a final hearing before the arbitrator makes the award. This will then typically be confirmed in a formal court order which will ensure the decision can be enforced if your ex-partner does not comply.
What does arbitration cost?
Most arbitrators will offer an initial no-obligation consultation to get an understanding of your issues.
If it is a complex case, then you may find your arbitrator will charge an hourly rate as it may be difficult to estimate the total cost. This rate could range between £250 and £450 per hour.
Alternatively, some arbitrators offer a fixed fee which can cover either the whole case, or specific parts of it. Bear in mind that they may also charge an hourly rate for additional or unexpected work.
The cost of an arbitrator will depend on their experience and whereabouts in the country you live. Any costs will be agreed by both parties and the arbitrator before the process begins.
Additional costs that you may incur include:
- Venue hire, if you have to pay for a room in which to conduct hearings
- Transcription, as it may be necessary for the hearings to be recorded.
Legal Aid is not available for arbitration.
While there are fees for arbitration, it is often cheaper than going to court.
Who pays for arbitration in a divorce case?
You and your partner will normally agree to split the arbitrator’s fees and expenses equally. Additionally, the typical arrangement for legal costs is that you and your former partner pay your own legal fees. Of course you can divide the costs differently if you both agree.
The arbitrator can make an order to force one of you to pay some or all of the other party’s costs. This could be, for example, because of the conduct of one party in relation to the arbitration.
Can I use arbitration even if my case is already in court?
Yes. Court judges understand the benefits of arbitration and they have the power to adjourn court proceedings to give you and your former partner the opportunity to resolve your dispute through arbitration.
Once an arbitration agreement has been signed, court proceedings will be halted awaiting the outcome of the arbitration. The eventual award can be incorporated into the court proceedings.
Do I need a solicitor for arbitration?
It is recommended that all parties take legal advice before entering into an arbitration agreement. Taking advice will help you to understand exactly how the process works and the implications of the arbitration award. It’s common for a client to already have a divorce lawyer who has been engaged in lawyer-to-lawyer negotiations before reaching the point of considering arbitration.
You may also wish to use your solicitor to present your case and the legal arguments in support of your position.
What powers does the arbitrator have?
Your arbitrator has a range of powers to make decision on the issues on which you can’t agree. These powers include:
- Making a temporary order, for example for maintenance for a spouse
- Appointing experts to oversee certain parts of the dispute
- Deciding whether an oral hearing is needed and what evidence will be required
- Deciding exactly what issues are addressed in the arbitration.
One power that the arbitrator does not have is to meet or interview children. They may appoint a qualified independent social worker to see children, but they don’t have the power to interview the children concerned in a case.
How does the award work when the arbitration is complete?
Once all the evidence has been heard, the arbitrator will make an award. They will generally provide rationale to support their decision.
Arbitration awards are always unique to the parties involved and completely confidential. You will be encouraged to turn the award into a financial order in the family court so that it can be enforced in future.
The award is binding on both parties, and you must accept the decision whether you like it or not.
Can I challenge the arbitration award?
There is only a very limited right to appeal the decision in an arbitration case. Challenges to a decision are rarely successful.
There must be very specific grounds for appeal, and these mainly relate to the process itself. For example, there may have been dishonesty in disclosing financial assets.
Any such appeal would normally be heard by a High Court Judge in the family courts.
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