Arbitration is the ability to refer any unresolved issues to a qualified arbiitrator on a private basis who will make a decision either via an oral hearing or a paper submission which will then create a binding outcome.
Arbitration is the ability to refer any unresolved issues to a qualified arbitrator on a private basis who will make a decision either via an oral hearing or a paper submission which will then create a binding outcome.
Arbitration is available for both financial matters and issues regarding children. In financial proceedings a form ARB1FS must be completed. Once signed, the couple are bound to the process. In children proceedings the relevant form is ARBCS. Again the couple will be bound once the form is signed.
The process in entirely ‘bespoke’. As the underfunded Court system becomes ever more blighted by delay and inefficiency, arbitration stands as an option which can achieve resolution much more quickly and inexpensively. Although the arbitrator will be paid an agreed fee whereas the Court service is arguably free of charge, the overall costs will be substantially reduced as a consequence of the process taking a very much shorter period of time.
The couple are able to agree the following:-
Common concerns about the arbitration process are as follows:-
Disclosure is required to the same level within arbitration as within the Court system (unless agreed otherwise by the couple). If one party to the process refuses to provide disclosure the other may make application to the Court for an Order enforcing the provision of disclosure within the arbitration. This may have costs consequences for the person who is refusing to produce information or documentation.
It is usual to involve the couple in the selection process. Often the lawyers involved will identify a small group of arbitrators from the IFLA website whom they consider appropriate to deal with the case. They may then ask one of the couple to reduce that number by half and the other to select the arbitrator who will deal with matter.
Once the form ARB1FS or ARB1CS has been signed the couple are contractually bound to the arbitration process. The award provided is only appealable in very narrow circumstances. Realistically however it is difficult (and expensive) to seek to appeal an Order of the Court. In arbitration however each award is submitted to the Court in the form of a Consent Order for final ratification by the Court and therefore there is arguably a ‘final test’ in each case.
Arbitration is beneficial in circumstances where the couple have been engaged in the process of mediation and have agreed on almost all issues but have reached a ‘sticking point’. They may ask an arbitrator to make a decision only on that one point, leaving the balance of their proposals in tact. If an application were made to the Court in these circumstances, the issues resolved during the process of mediation would also be adjudicated by the Judge. Further, the Court hearing would take place some 12 to 18 months later whereas an arbitration hearing can be convened as quickly as possible, subject to the time constraints of the arbitrator and the couple themselves.
The process of arbitration provides a faster and more bespoke service for the separating couple; maintains continuity of adjudicator throughout and provides the best opportunity of a fair outcome where the decision of a third party is required. The adverse pressures which are experienced within the Court process are removed.