Where arbitration comes into its own is where the parties have got to the point where they can no longer talk or their positions have become polarised.
This does not necessarily mean that the entirety of their situation has become unsolvable. Arbitration equally applies when the parties have managed to negotiate most of the dispute between them, but there are some areas where they simply cannot reach a final agreement. Arbitration can deal with that specific part of their dispute which has not been resolved.
Equally, if the parties find that they are unable to come to an agreement as to any aspects of their dispute, then arbitration is obviously an ideal way forward.
If the parties are unable to resolve matters, it used to be the case that the only option open to them was the court process. This is slow, time consuming and costly. Litigating from beginning to end can take 18 months to two years. This is a long period of time in which the stresses of the separation will be most keenly felt by both parties. It allows for all sorts of little ‘side arguments’ to arise simply because there is not a clean, quick, swift determination of the issues between them.
The court is also expensive not just in terms of the court hearings but also the slowness of procedure; so whilst it is the case that you need to pay for your arbitration (being a private law option) the data from the Institute of Family Law Arbitrators shows that arbitration is invariably an overall cost saving to the parties simply because of its speed, bespoke nature and general effectiveness. For example, if a matter is before the court and is allocated a four day hearing that is generally a two day arbitration which saves two days of legal fees, barristers’ fees etc.
Arbitration can be used to deal with virtually any financial dispute between parties. It can also deal with children matters, provided it does not involve children leaving the jurisdiction or where there are safeguarding issues in relation to those children.
Where mediation takes place is a matter for the parties and the arbitrator. It can be held in a private suite of rooms; it can be held at Arbitration House in Central London; it could be held in barrister’s chambers; it can be held in a solicitor’s office, etc. All that is required is a suite of three rooms so that each party have a room to retire to and that there is an arbitration hall. The arbitration process, being bespoke, is also generally informal. You don’t need a ‘court-like’ building, you can perfectly happily sit around a table and have your arbitration take place.
In order to engage in arbitration the first thing you and your former partner will need to do is agree who the arbitrator is. This is of enormous benefit because it means you can select an arbitrator whose skills are tailored to the type of problem you are presenting. For example if there is a financial dispute between you, clearly you want an arbitrator who is a matrimonial financial specialist. Similarly if it is a parenting issue that needs to be resolved you want to ensure that your arbitrator is an excellent children family lawyer.
This is one of the key benefits of arbitration over the court process, in which your judicial officer will be selected more or less at random and whilst you may have a complex financial issue you may end up with a judge whose specialism is childcare or, indeed, sometimes not a family lawyer at all.
Arbitration means that you are getting the best possible adjudicator for your issue.
Once you have signed the arbitration agreement, you are bound by it. The arbitrator then takes control of the process and, with you and your former partner, works out what steps need to be taken to bring you to a final arbitration. Once that arbitration takes place the arbitrator will provide you with a written award and, generally, orders to be filed in court. This award will be in writing and is binding on you and your former partner. The court, which is highly supportive of the arbitration process, will then make the orders the arbitrator has suggested.
Therefore arbitration can be seen as the quick and bespoke alternative to long and messy litigation.
For more information on the issues raised in this blog please do not hesitate to contact Julian Bremner