As we sit at court waiting interminably for the case to be called on, my client asks, with a hint of desperation in his voice, whether there isn’t a way to “go private”.
The answer, happily, is that there is…..
Family arbitration is an alternative to court proceedings and is another way of sorting out financial disputes. Like a judge in court, a family arbitrator listens to the facts and examines the evidence put forward by the parties’ legal representatives and then makes a decision based on this evidence. The arbitrator’s final decision is a binding ruling, known as an “award”. More litigants are opting for arbitration as a way to resolve disputes which otherwise would end up in a long, slow court process.
The main advantages of family arbitration are:
The parties choose the identity of the arbitrator, so it will be someone who has the right experience to deal with the issues that have to be decided. This gives the parties a degree of control in that they know who they are getting, which doesn’t apply in court proceedings where the parties cannot choose the judge! Not every judge hearing a case in court is a family law specialist. Family arbitrators, on the other hand, have to be.
The system is significantly more flexible than the court system and allows the parties to choose the best approach and procedures for their own circumstances. There have been circumstances where the parties have agreed that the family arbitrator will decide everything on the basis of written evidence alone, rather than having hearings.
The parties have to pay the family arbitrator’s fees and often there will also be costs for recording each family arbitration hearing. Depending on the experience required it is possible to appoint an arbitrator for a one day hearing for about £3000 plus VAT. Obviously these rates increase the more senior the arbitrator. The cost of arbitration will vary considerably from case to case.
This process can be much faster than going to court. Court delays are sadly an ever present feature of our family court system.
The family arbitrator chosen will deal with every stage of the process so there is more consistency of approach, (very unlikely in the court system).
- Narrow the issues
The parties can agree what they want the family arbitrator to adjudicate upon. This may be everything that is in dispute, or just one or two issues. For example, the parties via solicitors or mediation may have agreed the capital split between them but may have reached a deadlock in agreeing a suitable maintenance figure. This specific issue could be dealt with in arbitration.
The parties can agree the method and extent of disclosure of their financial positions. They may decide to still use Form E (the same form that is used in court proceedings) or they may decide to have summary excel spreadsheets with limited evidence attached. Every case is different, and the arbitration process recognises that not every case requires the same level of disclosure.
The one thing an arbitrator cannot do is make any orders to freeze assets or to have assets returned if they have been wrongfully removed by one party. If assets have been hidden or removed, or if there is financial non-disclosure by one party, then it is still possible to go to court to get orders to deal with those points and then return to arbitration. However, if there are likely to be significant problems of this nature, the general advice is to stick to court proceedings.
The parties and their legal advisors can choose with the arbitrator where and when they will meet. It doesn’t have to be in a court building. There may be a cost for hiring the venue which would have to be shared by the parties.
The hearings are all private and it is easier to keep everything away from press attention should that be needed.