When it comes to resolving a dispute between you and your former partner (married or not) whether it is to deal with your children or perhaps to deal with finances, there are a variety of different options you can choose to have that dispute dealt with quickly, efficiently, and cost-effectively. The days of automatically filing proceedings in court are long gone. Out of the many options available to you, I want to talk to you about arbitration as a mechanism that you should seriously consider.
The court system is undeniably broken. Persistent lack of funding and underinvestment means that the court system is choked, and the backlog is extreme. The few remaining Judges hired by the court service are considerably overworked and, importantly for you and your family, Judges dealing with family law matters may not be family law experts or, indeed, have any background in family law at all. This is leading to exceedingly slow and sometimes very “rough justice”.
Conversely, arbitration is a bespoke private law system where an arbitrator, who has all the powers of a High Court Judge, is an expert in the family law field and is qualified to provide you with a swift and effective resolution of any dispute between you and your former partner.
The benefits of arbitration in financial disputes can be summarised as follows:
- Expertise – As mentioned, your arbitrator – who is selected by you both – is a family law expert in the area of family law you require. Whilst you may not like the final determination, unlike court, at least you know that your arbitrator has the skills, knowledge, and experience to form that decision;
- Timing – This is everything. Arbitration, as a bespoke private process, meets you and your former partners’ timetabling. The arbitration can happen as swiftly as it is ready, given the court process is taking two-plus years at present, this is a considerable benefit to you, not only in terms of having a decision you can rely upon but also not having to suffer your case going on for a long time which is draining and puts your life on needless hold.
- Cost Effective – Whilst you both pay for your arbitrator, the streamlined process of arbitration means, ultimately, you are spending less than you would at court. Because your arbitrator has time to prepare and will read your case fully before any hearing, what would be a two-day final hearing in court, is a one-day arbitration, saving you considerable legal fees. The swift nature of arbitration also means that those sorts of side skirmishes or disputes that crop up over a long period while you are waiting the many months between court hearings, simply fall away. Parties can focus on preparing for their final arbitration and once the arbitrator has issued their award (Judgement) matters are resolved and the parties can both move on with their life.
- Repetition – The swiftness of arbitration also means that you avoid the repetition that the court process undoubtedly involves, given the long periods between respective hearings. For example, in arbitration, you can provide your financial disclosure and rely on it, whereas in the court-based process, given the amount of time between the stages of the court hearings, quite often disclosure needs to be updated frequently and may shift fundamentally as market forces work on the asset base of the marriage (be it the value of the family home/pensions/shares/business interests). This just drives costs and uncertainty. This is completely avoided in arbitration.
You can have the confidence that the legal principles in financial arbitration are soundly based on the very same law that would be applied if you were in court. An arbitrator, who is also generally a specialist family law Barrister or Solicitor, is working off the very same principles of law that apply in the judicial process. You can be confident that proper law will be applied to your case.
As a voluntary process, arbitration allows you, at a time when the rest of your life is a little out of your control, strong input into how your case is resolved. You and your former partner elect together to enter arbitration. Once you have agreed to do so, you will be bound to it. You choose who your arbitrator will be. One party may put forward no less than three names and the other party can select one of those names. This offers you considerably more choice than you would in the court process where a Judge is appointed, sometimes on the day of the hearing. It is that aspect of being able to select and have some choice in how your life is determined that is important to many people.
An arbitrator is fully neutral and impartial. They are working for you both and, speaking as an arbitrator myself, feel the burden of helping you resolve matters, a heavy one indeed. The arbitrator will spend significant time considering the papers he or she has read and the evidence that he/she has heard, before making a final determination. At the end of the Final Hearing, the arbitrator will not provide an instant decision. Rather, they will produce a written Award, setting out the law and their arguments as well as their determination, some 2 weeks (or perhaps a little more) from that Final Hearing.
Confidentiality is a key plank of arbitration. It is not inside the court process. There is no ability for third parties or the media to become involved in your case or understand the arguments asset base within. It is this feature of arbitration that has caused it to be picked up quickly by those with whom the media would normally hold an interest. But it is equally important for everyday parties who wish their matters to be dealt with privately and discreetly.
As mentioned, there are many options for parties to resolve a dispute between them. Collaborative law, Private FDR, and mediation allow parties to discuss matters and if they can reach an accord – fine and good. Arbitration is for those parties where they have tried solicitor negotiation or mediation or indeed collaborative law but have been unable to resolve some or indeed all of the issues between them. At that point, arbitration provides a quick cost-effective, legally robust process by which a resolution can be achieved.
