Arbitration

Susan Clark – Solicitor
Specialist in Family Arbitration
and
Dispute Resolution

Arbitration Services

Susan Clark is a very experienced arbitrator and a member of the Chartered Insitute of Arbitrators

Arbitration is a relatively new concept in family matters, although it has been around for many years to deal with commercial disputes. Arbitration is a private, formal and binding process where disputes are resolved by a final award made by an Arbitrator.

Until Arbitration was introduced, the only way to resolve issues that could not be agreed upon was via the Court. Of course, it is always the aim to try and reach agreement when relationships break down but it is not always possible. Arbitration can also be used with the mediation process so that discussions and disclosure of assets could take place during mediation and if you cannot reach agreement, then the matter could be referred to Arbitration.

Resolving disputes using Artibtration

Arbitration can be used to resolve all of the issues between you or just some of the issues.

For example you may want a decision about interim financial support, how the contents of a family home should be divided, or how much maintenance should be paid and for how long. It cannot however be used for issues about where children should live or how often contact should take place.

Arbitration can deal with:-

Financial issues arising out of marriage breakdown such as maintenance, payment of a lump sum, orders relating to property and division of pension funds.
Financial provision for children (over and above what the CMS/CSA can deal with) – this is important where parties are unmarried and for example a house needs to be provided for a mother who cares for the children. Maintenance for children where both parties live in the UK will still be dealt with by the CMS/CSA but Arbitration could be used for the costs of university and support of a child over 18 years, for maintenance where one party lives abroad or for ‘top up’ orders where income is high and additional income is needed.
Disputes between partners who live together. If there is a dispute about how the proceeds of a property should be divided where it has been purchased jointly or in the sole name of one of the parties.

Arbitration works in the same way as a court except that the person making the decision is someone you choose, such as myself. The decision is binding although it is necessary to have a court order made once the decision is made. This should be a straight forward and inexpensive process.

You and your partner will either choose an Arbitrator or can ask IFLA (the Institute of Family Law Arbitrators) to choose one for you. The fees will be met jointly between you. The Arbitrator will deal with you both equally. That is any communication with the Arbitrator will be copied to the other party.

The benefits of arbitration are:-

It is suitable for all levels of assets
Speed. A dispute argued through the Court system can often take in excess of 12 months to reach a final hearing. Arbitration could be finalised in as little as 3 months (depending on information being readily available and whether valuations can be agreed)
Usually a lower number of hearings
The initial hearings can be dealt with by telephone or with agreed directions giving a much greater flexibility to the parties.
There is no reason to attend a mediation information meeting which is now a requirement before commencing court proceedings.
You can choose the venue where the Arbitration takes place and the dates to fit in with you.
If the matter is straight forward or just a small issue you can ask an Arbitrator to deal with matters by you and your partner putting your arguments in writing.
Lower costs – because although you don’t pay to use a Judge, the fact that the proceedings take less time and there are fewer hearings should mean it costs less.
The same person will deal with the case from start to finish avoiding the inconsistency that can occur in the Court system where several different Judges could deal with the matter.
Whilst it is important to have legal advice there is less need to have representation throughout the process because it is so much more informal.
It is private.

Getting Started

To start the arbitration process you and your partner must agree that this is the way you wish to resolve matters. A form called an ARB1 is completed either with the name of the Arbitrator you wish to instruct or asking the IFLA to choose for you. Once the Arbitrator has been instructed you have to continue in the Arbitration process unless you and your partner agree that you do not wish to.

The Arbitrator has the same powers as the Court. That is they can order valuations of properties, pension reports and other experts’ reports if these are needed. This is done at a first hearing usually.

The final hearing usually involves the parties (and their solicitors if they have one) attending. If the issues are limited, it can be dealt with in writing. After the hearing the Arbitrator gives an award in writing usually within 14 days. There is only very limited ability to appeal (where there is a legal error or some other irregularity).

Once the award is made then the court is asked to incorporate the terms of the award into a consent order. If one party refuses to co-operate then the other party can apply to the Court for the order to be made.

Even if you are already in court proceedings, you can ask for these to be stayed to enable you to try and resolve matters through Arbitration.

What do you do next?

You must both decide that you would like to use this scheme. Then one of you should write to me via e-mail or a letter, with a brief summary of the case copying that correspiondance to the other party.

I cannot deal with one party by telephone because both parties have to be dealt with equally and to also ensure that the procedure is transparent. If I take on the case, I will then send you the ARB1 to complete.

I will then confirm that I am formally instructed to deal with the Arbitration. I should then be sent instructions, which should contain all the documentation that each side wishes me to consider and details of any disclosure that has taken place to date of the financial positions of each of you. It can then be decided what needs to be done further to get the case ready for a final hearing.

For clear, confidential and supportive Family Arbitration advice, call:

Susan Clark on telephone number: 01444 454530

More Information about arbitration and the arbitration process can be found in the leaflet below and at the IFLA.