Arbitration is a way to resolve disputes before going to Court. It involves both of the parties who are getting divorced. The parties enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to settle their dispute and make an award. It is often used in litigious matters, but recently it has been available for family disputes as well.
Arbitration has been available for family law disputes since 26 March 2012 following the launch of the Institute of Family Law Arbitrators (IFLA). The IFLA is a collaboration between Resolution, the Family Law Bar Association (FLBA), the Chartered Institute of Arbitrators (CIArb) and the Centre for Child and Family Law Reform (CCFLR). The administration of the scheme is undertaken by Resolution on behalf of the IFLA, and the training and regulation of arbitrators is the responsibility of CIArb. The scheme is governed by the IFLA arbitration rules (IFLA rules). Details of practitioners who are currently qualified as arbitrators and are on the family arbitration panel can be found at www.ifla.org.uk.IFLA rules—3rd edition (2014)
The decision of an arbitrator is binding upon the parties in the same way as an order of the court. It is different to mediation, as a mediator helps you make your own decisions, whereas an arbitrator makes the decision for you. Positively, the process can be as informal as the parties wish and can run at a pace that is comfortable to them. This means that it can proceed faster than the courts, and be in an environment which is less intimidating than a court room.
Furthermore, the arbitration award cannot override the jurisdiction of the court. This means that the award must still fall within the parameters of the Matrimonial Causes Act, which is applied within the courts. Therefore, it is likely you will receive a similar result through arbitration as you would through the courts.
Once an award has been made, the parties are expected to apply to the courts for a Consent Order in the form of that award. Courts retain jurisdiction over the arbitrator’s decision, and recent case law has suggested that the court will uphold an arbitration award so long as it is within the parameters for the Matrimonial Causes Act. If the parties can show that they had voluntarily agreed to be bound by the award and they were placing the award before a judge for it to be considered by their own consent, then “it would only be in the rarest of cases that it would be appropriate for a judge to do other than approve the order”.
Author – Victoria Clarke of rhw’s Family Law Team
rhw Solicitors offer support in arbitration, and if you think this is a service which can help you resolve your disputes, please contact a member of our family team.