Family Arbitration is an alternative to going to court for Family Law disputes. Should a divorcing or separating couple be unable to reach an amicable agreement regarding financial matters or child arrangements, they may choose to designate an arbitrator jointly to resolve their differences. The parties agree to the outcome, which will be presented to the court for final approval.
In situations where the parties have attempted to negotiate, solicitors typically offer assistance and advice on how to set up an arbitration. Alternatively, the party filing for divorce may discover that the court schedule has unacceptably long delays after filing for the divorce. Parties have the option to “sidestep” litigation at this point in favour of an arbitration or private adjudication.
When can Family Law Arbitration be used?
Arbitration can be used for a variety of reasons and at any point during a family law case, such as the following:
- In place of court proceedings entirely.
- To settle a particular dispute that might be impeding talks on the entire case.
- In lieu of a Final Hearing, which could expedite the process by several months, or a Financial Dispute Resolution Hearing in a divorce involving finances.
After the parties appoint the arbitrator, they decide what issues the arbitrator is required to decide.
The benefits of arbitration include its speed, flexibility, confidentiality, and ease of venue selection. Additionally, your case will be handled by the same judge the entire time, so allowing for continuity of judicial involvement.
The arbitrators will be a highly experienced family specialist and can be a barrister, solicitor or retired Judge. Compared to judges who have been assigned to hear family cases but have greater experience in other areas of the law, they frequently possess more specialized knowledge of family law.
While it is not required, the majority of parties choose to have legal representation during the arbitration process. The parties themselves decide on the hearing’s structure and the actions that must be taken to get the case ready for the arbitrator. The directions required to progress the case, and any initial concerns can be effectively determined by the arbitrator over the phone or via a video/zoom link. The arbitration final hearing can also take place remotely as well and it is possible, if appropriate, for the arbitrator to make a decision, called the arbitral award, on paper only, without a hearing. In these circumstances, the parties will submit statements and other relevant information for the purpose of the arbitrator’s decision.
If you are under time pressure to make a decision related to a child matter, such as choosing a school for a child, your case may also be heard quickly before an arbitrator. The arbitrator’s time spent reviewing the case and making the decision, as well as any fees associated with hiring a legal representative, are the costs involved.
In comparison to going through a fully contested court process, the costs are probably significantly lower and there is no court fee. But the most important thing is that both parties have to consent to the arbitration. The Institute of Family Arbitrators (IFLA) may select an arbitrator on your behalf if you are unable to reach an agreement on who should be chosen. You could also ask them to select from a predetermined shortlist.
Can Arbitration speed up the process to reach a settlement?
The majority of clients report that arbitration saves them a great deal of money, time and stress as opposed to a process dealt with through the Courts. There is also the fact that an arbitration hearing may be more guaranteed to go ahead, and even in the event of a cancellation, can be more easily rescheduled. This is unlike a final Court hearing which may be cancelled at the eleventh hour for lack of judicial availability. Court hearings timescales are also flexible and can be agreed with the arbitrator, unlike the Court system which is less flexible and can incur significant delay.
There is still a right of appeal in arbitration if one party has a valid reason to contend that the arbitral decision is unfair or incorrect, the arbitral award may be contested on appeal in the family courts.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
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