Family Arbitration

The Court system is creaking – and the cracks are there for all to see. Backlogs mean 100,000 children and their families are currently waiting the best part of a year for a Family Court Judge to decide their cases.

The Perfect Storm

Family Courts are sitting right in the eye of a perfect storm – and recent Ministry of Justice (MoJ) figures are a stark illustration of the damage being caused. They reveal that the average child custody case – currently referred to as ‘child arrangements’ cases – is taking 11 months to be resolved. That comes as the MoJ also revealed there are some 100,000 children involved in child arrangements cases. The effect? These children, along with their families, are waiting the best part of a year for a Judge to decide what should happen in their case.

Underfunding has been a blight on the UK’s Courts for many years – and it really shows. Many buildings are in a state of disrepair. Facilities are often inadequate. Cases are delayed for months and years. Judges feel the pressure to hear as many cases as possible. Covid still casts a shadow, with the knock-on effect of the pandemic contributing to the backlog. Even getting a simple update on your case can be a nightmare as phones go unanswered and staff struggle with the workload.

Unacceptable Facilities

Too often, Court Centres are not fit for purpose. As well as being in a poor condition, their facilities are often inadequate. A striking example of this is in Peterborough. Here, the Family Court waiting area is separated by a set of double doors from the public waiting area provided for the Crown Court. But the Family Court waiting area is only a quarter the size of that for the Crown Court. This means the Crown Court area has to be used for the ‘overspill’ of Family cases. The unacceptable result? Vulnerable people involved in traumatic Family cases, such as disputes involving children or divorce, are cheek by jowl with those involved in the most serious of criminal cases such as rape, murder and other violent crime . This continues due to inadequate facilities and underfunding. When I started out as a Solicitor a little over 15 years ago, the local Court had its own canteen and a library. Now, you’re lucky if the vending machine works – there’s certainly no library anymore!

Another Way

The Court system is currently run on a shoe-string budget, by overworked Judges and support staff, in an environment that’s not designed for Family Law issues and where it will probably take the best part of a year to deal with your case. It doesn’t have to be like this. Arbitration may be the answer.

What is Arbitration?

A simple analogy could be to see Arbitration as like ‘going private’ as an alternative to using the NHS. In our example, the Court takes the place of the NHS, and Arbitration takes the place of the private health provider. But crucially, unlike having ‘private’ medical treatment, Arbitration in a Family Law dispute is not necessarily any more expensive.

This is because:

If you choose Arbitration, although you are still going to have to pay your Solicitor’s costs and there will also be the cost of the Arbitrator, this should be offset by needing only one, or at the most two, ‘hearings’.
Going to court entails the potential for three separate hearings, which, of course, increases legal fees.
As the parties pay the Arbitrator’s fees 50/50, the cost of the Arbitrator is not going to be paid just by one party, unlike Court fees which are solely paid by the person applying to Court.

Arbitration is available for most Family Law matters and is becoming increasingly popular due to its advantages over the Court system. In Arbitration, a private Judge – usually a retired Judge or Barrister – decides the issue in question. He or she determines how assets on separation should be divided or what arrangements should be made for children. The decision of the Arbitrator is final and binding on the parties.

At Belderbos Solicitors, our experienced team is dedicated to helping you navigate the arbitration process smoothly, ensuring that your interests are represented effectively.

Frequently Asked Questions

In family arbitration, you and your ex-partner appoint an arbitrator. This person will make a final and binding decision between you on any financial and property disputes or, in some situations, child-related issues. It’s a good idea to take independent legal advice as part of this process, and this is something we’re experienced at and can help you with.

Family arbitration enables couples going through a break-up to resolve disputes more quickly, in confidence and in a more flexible and less formal setting than a courtroom.

The same arbitrator will deal with all stages of the case from start to finish and you and your ex-partner will decide how the proceedings are run. This could include, for example

choosing the venue
whether you meet face to face or through writing only
whether to use the arbitrator for the whole process or just the parts you are stuck on

The flexibility and the fact that you will get a final decision much more quickly can make arbitration more cost effective than court.

There are situations not best suited to arbitration, for example if you need to get evidence from third parties or there is a risk that your partner might try to hide assets. However, appointing an arbitrator is a genuine alternative to going to court for most family cases. Our team can support and guide you each step of the way.

Family arbitration has various benefits as a way of settling family matters outside of court. Here are some of the key advantages of arbitration:

Speed of process

Significant backlogs are now being experienced in family courts, with stretched resources needing to deal with a rise in demand. If resolving your issues quickly is a priority, then family arbitration can be a good choice. In straight forward disputes, you can reach a resolution within 4-8 weeks of an arbitrator’s appointment.

More flexibility and control

Arguably the biggest advantages gained from family arbitration are the flexibility and control it gives the parties involved. As mentioned, you and your ex-partner get to choose where the arbitration is held and how to use the arbitrator. You can decide whether the process is to be run ‘on paper’, in person, remotely or a hybrid scheme involving a mixture of these. You get to decide how formal the process is.

Overall, the control people enjoy from choosing family arbitration can make it a lot less stressful than court proceedings. Typically, we see improved outcomes and faster timescales with this method of resolution.

Collaboration

By its very nature, arbitration is collaborative. As well as the pace at which the resolution is reached, working together in collaboration typically reduces conflict. The onus is on resolving the issues rather individuals trying to get the best outcome for themselves. This is particularly helpful when a case involves children.

Privacy

Family arbitration is essentially a confidential process. The media or public are not entitled to attend hearings, which are at venues chosen by the parties involved and not advertised.

Bespoke

Arbitration is tailored to your particular issues, and you can choose your arbitrator. This enables you to select someone with the specialist knowledge and level of expertise suitable for the particular issues in their case.

Your arbitrator would be privately engaged by you and this has several advantages:

Your arbitrator will be consistent, dealing with the dispute from start to finish
Your arbitrator will have knowledge of the history and development of the issues and arguments
The arbitrator can deal with any applications or issues promptly, as they arise
They will have set aside time to appropriately prepare for the arbitration, and give appropriate consideration and a detailed judgment after the hearing

Cost

Arbitration is usually a less expensive alternative to court proceedings. Being able to streamline the procedure, and limit disclosure, will usually lead to significant cost savings.

Your arbitrator’s fees will be fixed at the outset and shared between you and your ex-partner. Furthermore, there is no risk that the hearing will be removed at short notice and re-listed, leading to an additional brief fee, as is becoming increasingly common within the Family Court.

Finality

At the end of an arbitration process, you will receive a decision that resolves your dispute. The arbitration will be respected by the family court and it can be made an Order of the Court on request.

Family arbitration is one of a number of ways to resolve family matters outside of court, which is an approach we encourage in most cases.

Together with around 6,500 other family lawyers and professionals, we are members of an organisation called Resolution. Resolution members are committed to resolving family disputes in a constructive way and we follow a Code of Practice that promotes a non-confrontational approach to family problems. Resolution encourages solutions that consider the needs of the whole family and are particularly focused on the best interests of the children involved.

Today, more than four out of five divorce cases will not end up in court. Indeed, the family law courts actively encourage people to resolve issues in non-confrontational ways, such as family arbitration. The many benefits of doing so include

reduces time and cost
avoids the stress of going to court
helps to avoid rifts developing between the parties
benefits future communication and relationships
have a much higher success rate

At Belderbos Solicitors, our highly experienced and qualified team are specialists in helping you to avoid court and complete a divorce or separation without the cost, stress and conflict. This is why we would be very happy to talk to you about supporting you through family arbitration.

In the UK family arbitration can be a valuable tool for resolving a variety of family law issues outside of court. Here are some of the matters commonly addressed through family arbitration:

Financial issues

Division of assets – family arbitration can be used to determine a fair division of marital assets, such as property, pensions, savings and investments during divorce or separation.

Financial provision for children – arbitrators can help to determine the right level of financial support for children after separation, potentially including issues like school fees or extra-curricular activities.

Child-related matters

Child arrangements – arbitration can be used to explore potential solutions for child arrangements and reach agreements outside of court. This can be a quicker and less confrontational approach than court proceedings, enabling you to agree living arrangements and the time each parent will spend their child.

Specific issues – arbitration can be used to address specific concerns related to children, such as consent for overseas travel and decisions about a child’s schooling.

Family arbitration can resemble family court proceedings. Similarly to a judge in a court case, an arbitrator will give a decision after hearing evidence from all parties involved and the arguments supporting their respective cases. Arbitration and mediation can, however, complement each other.

Your arbitrator may consider that mediation could be advantageous to you and your ex-partner and would suggest you try it. Mediators can also make a recommendation of arbitration if mediation breaks down. It is possible for a mediator to refer a specific part of a dispute to arbitration to resolve a particularly difficult issue.

Family arbitrator’s fees – you, your ex-partner and the family arbitrator will agree the level of the arbitrator’s fees at the start of the process. These fees are usually based on an hourly or daily rate, but may also be arranged on a fixed-fee basis, and will usually be shared between you and your ex-partner

Venue hire – there may be costs involved in hiring a venue for any meetings scheduled as part of the process. These costs will normally be shared.

Independent legal advice fees – we recommend that you and your ex-partner appoint a lawyer to help you through the process. You will both pay your own legal fees.

Experts’ fees – you and your ex-partner might require experts as part of the process. Again, these costs will normally be shared.

The short answer is ‘yes’. Before starting out on the Arbitration process, the parties must agree that they want the Arbitrator’s decision to be binding. Assuming both parties do agree that they want to use Arbitration to resolve their dispute, they will then both sign a contract confirming that they will be bound by the decision. By signing this contract, the parties agree that they cannot apply to the Court at a later date for a Judge to reconsider the case.

Of course, there must be checks and balances. As with the Court process, there can sometimes be a decision made by a Judge that is unfair, or wrong. In these rare cases, there is an appeal process through the Courts. The same is true of Arbitration, and either party can challenge the Arbitrator’s decision in very limited circumstances.

These are:

If there has been a serious irregularity that has caused, or will cause, substantial injustice. This basically means that the Arbitrator made an error in terms of the facts.
On a point of law. This basically means that the Arbitrator misapplied the Law.

A challenge to the decision on one of the above grounds would have to be made within 28 days.

As with the Court process, it’s not possible to challenge the Arbitrator’s decision simply because one party doesn’t like it. Therefore, save for the Arbitrator misapplying the facts or the Law, the decision of the Arbitrator will be binding.

Typical Arbitration Process

Below is a very brief rundown of the stages of Arbitration:

Stage 1 – Agree to use Arbitration.
Stage 2 – Agree the Arbitrator and the issues that are to be addressed.
Stage 3 – Sign the binding agreement.
Stage 4 – Prepare for the Arbitration session.
Stage 5 – Parties attend at the Arbitration session.
Stage 6 – Arbitrator provides their decision. This is binding.

Next Steps

If you feel that you’ve reached a stage in your separation or Family Law issue where Court feels like it’s the inevitable next step, it may be worth considering Arbitration instead. In the vast majority of cases, it is likely to be the best way forward.