Where arbitration is useful and effective to resolve disputes between you and your former partner is where you have been unable to come to a resolution either in solicitor negotiation or mediation.
For whatever reason, both you and your former partner have come to a point where there is an absolute ‘log jam’ between you and you are unable, to any degree, to break the deadlock. Your positions have just become polarised and you need someone, who is an expert in the area in which your dispute is based, to come to a determination for you as to what the answer may be – such answer being fairly based in the law of the current time.
In this regard arbitration can be used to solve the entirety of the dispute between you, or if there is one little side issue that is preventing an overall settlement.
For example you may have been able to resolve all the issues between you except, say, the level of maintenance to be paid. Is it one figure or is it another? The arbitrator will fix an award on that basis.
You may also not quite be able to determine, on a pension sharing basis, whether the pension retirement age is to be set at 65 or 67 as that may have an impact on the percentage of a pension to be shared. The arbitrator can make a decision. You may have a parenting dispute with each other and unsure as to which of the two schools on offer your children should attend. The arbitrator can make an award in that regard. Similarly there then may be difficulties in determining whether the handover of contact takes place at one particular venue and one particular time or another. In order to break the deadlock the family arbitrator can make a decision on those discrete points so that the rest of your agreement can move forward.
Arbitration is a swift and economic alternative to litigation. In the examples I used above, if you are unable to come to an accord, your only other option would be to approach the court. This is time consuming, very costly and actually draining on the parties.
By contrast, arbitration is quick and swift and means that you can reach a resolution sooner allowing you to both move forward with your lives.
It also means that you can choose an arbitrator who is expert and specialist in the area of your issue. This cannot always be guaranteed with the court, which is so critically under-funded. You may find yourself before a judge whose specialist practice is actually property law or personal injury, rather than the family law specialist you need to help you with your problem.
Arbitration is also useful if mediation has failed, as mediation requires both parties to compromise to reach a solution. If you have reached a point where there is no further compromise, then arbitration is a good method of breaking the deadlock between you.
Unfortunately some parties do come to a deadlock situation and it is best for that deadlock to be broken as swiftly as possible. Being able to arbitrate an issue quickly and simply means that the problem is resolved and doesn’t fester. The court process can take 18 months to two years. That’s a long time for parties to be angry with each other and frustrated that the other party won’t see their point of view. This in itself leads to ongoing problems in the parties’ relationship. You can appreciate that this is particularly difficult where there is, say, an issue over the finances and yet the parties have children and need to be able to co-parent effectively. It is tricky to be able to co-parent jointly and successfully and to the benefit of your children if at the same time you are angry with each other because you are being drawn through a lengthy court process to resolve a financial dispute.
The speed of arbitration means that it can be done, depending on the circumstances, in as little as a week or up to three months. This means a determination is made and you can both move on. Hopefully it means the level of angst between you both can subside sooner and a position of distrust and anger with the other party is not allowed to drag on and become entrenched. This is clearly better for the parties, and particularly so if they need to co-parent.
Arbitration is a final decision. The arbitrator’s decision is binding and will be upheld, save for very rare circumstances, by the court. This means you have the benefit of knowing that you have a final ‘once and for all’ outcome to whatever problem has developed between you and your former partner.
For more information on the issues raised in this blog please do not hesitate to contact Julian Bremner