What is arbitration?
Arbitration is a form of dispute resolution. Both parties enter into an agreement by which they appoint a qualified person to adjudicate a dispute and produce a finding, which will bind them.
In September 2011, an initial group of 20 family lawyers trained to become family arbitrators. Since then, a growing number of arbitrators have trained including senior judges. Family arbitration is now available not only to cover financial and property disputes arising from family relationships, and from July 2016 there is a new children arbitration scheme.
How does arbitration work?
The parties complete and sign a form in which they agree to arbitrate and adopt the rules of the scheme. They summarise the issues to be arbitrated. They can either nominate an arbitrator or invite the institute of family law arbitrators to nominate an arbitrator. They agree in the initial form that the arbitrator’s decision will be final and binding, and if necessary, they will apply for a court order to give effect to it.
The judgment and order made by the arbitrator is known as an award. There can be interim awards dealing with preliminary issues, for example interim maintenance of the extent of financial disclosure. The appointment of an arbitrator can only be brought to an end by agreement or by court order for limited grounds. However, the parties can agree to discontinue the arbitration at any time.
Advantages of arbitration
Unlike with court proceedings, the parties can define the scope of arbitration. They may want their entire dispute arbitrated or for a particular issue to be arbitrated. For example, if parties have reached agreement on all matters save for a particular issue such as the term of a periodical payments order.
The advantages include:
- Arbitration can start and finish before any proceedings are issued
- The parties can pick the arbitrator, whereas if there was a court hearing the parties cannot pick the judge
- The parties can choose the location of arbitration
- Arbitration can be much quicker and less expensive than court proceedings
- The parties can agree to exclude a right of appeal as there is a right of appeal to the court on a question of law unless otherwise agreed by the parties
- The entire process is confidential, which no longer the case with court proceedings and as papers are not filed at court there is less risk of a leak
Disputes that do not fall within the scope of the arbitration scheme
Disputes over the following matters cannot be the subject of arbitration:
- Issues in relation to the recognition of a foreign marriage or divorce
- Issues in relation to whether the court has jurisdiction
- Unlike the court, an arbitrator has no power to grant injunctions, which bind third parties
- Unlike the court, an arbitrator cannot compel third parties to produce documents
- Applications for the return to this jurisdiction or to another jurisdiction (child abduction proceedings) cannot be arbitrated
- Any case where a party lacks capacity under the Mental Capacity Act 2005 cannot be arbitrated
- Disputes in relation to the authorising of life changing or life threatening medical treatments (or the progress of the treatment) are not suitable for arbitration
The status of the award
An arbitration award is enforceable by leave of the court in the same manner as a judgment by the court.
If you would like more information about arbitration, please contact:
Partner and Head of Family
T. 020 7227 7448
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.