25th May 2021

Q&A: Family Arbitration

By Charlotte Symes

Q&A: Family Arbitration

In this blog, Director Charlotte Symes, provides answers to commonly asked questions pertaining to family arbitration.

Arbitration is an increasingly popular process option for my clients, with many benefits. However, I also find there are common misunderstandings of the process. Here are my answers to the top 10 questions I receive:

  1. Can I use arbitration for any financial issues? Arbitration can be used for financial claims arising from the breakdown of a marriage or a civil partnership, financial claims after an overseas divorce, financial claims of a parent in relation to any child, and financial claims between cohabitees/property owners.
  1. Can I use arbitration for any child related issues? Arbitration can be used to resolve disputes between parents or anyone with parental responsibility in relation to child arrangements, education, medical treatment, and any application to remove a child from England & Wales (whether permanent or for a holiday). However, arbitration cannot be used for an application to return a child to England & Wales from another country. 
  1. Is arbitration binding or can I change my mind? You and the other party will sign a form to confirm that you will be bound by the arbitration award. An arbitrator’s award will be made into a court order that is legally binding. Although arbitration is an alternative method of dispute resolution, it is one that largely mirrors the court process because the final decision will be made by the arbitrator unless you reach a settlement before the arbitration, in the same way that the final decision would be made by a court judge unless you reach a settlement before a final hearing.
  1. Who is the arbitrator? You will need to agree the identity of the arbitrator with the other party. Bear in mind that many arbitrators are barristers and so you may find that the arbitrator is a member of the same chambers as your or the other party’s barrister. Because barristers work independently and are bound by strict confidentiality rules, this is not an issue and will have no impact on the outcome of your case. However, I have found some clients to be surprised at this and so for transparency it is best for both sides to confirm the name of their barrister before the arbitrator is agreed.
  1. Will there be more than one arbitrator? Once you have selected your arbitrator, that person will make decisions at both interim directions appointments and also the final arbitration itself. 
  1. How long will it take? You can expect the arbitration process to be quicker than the court process or it can proceed slower if that is the pace that you need. The arbitrator may decide the timetable, however, if it is not agreed. Although the procedure and work required follows the same procedural rules as the court process, arbitration appointments can be arranged according to the diaries of the parties, barristers and the arbitrator, allowing flexibility and speed. You can agree to ask the arbitrator to deal with all issues or only a discrete agreed list of issues. At a final arbitration, each party should expect to give evidence and be cross examined. However, for certain cases, arbitration can be a ‘papers only’ process, where barristers will make written submissions on behalf of the parties and the arbitrator will consider that written evidence without a hearing, before making the final arbitration award.
  1. Are arbitrators less likely to make cost orders? I am often asked whether the arbitrator will be less likely to punish bad behaviour than a judge, particularly if the arbitrator is being paid for by one or both of the parties. The same rules apply and from my experience, where conduct that meets the legal test to be punished by a costs order, arbitrators are no less hesitant to make a costs order than a court judge. 
  1. Is arbitration private? One of the big attractions of the arbitration process is that it is confidential and this even extends to the submission of the award to the court for sealing: the award can be placed in an envelope marked ‘confidential’. By comparison, reporting of family court judgments is permitted in restricted circumstances, albeit with anonymity if required. 
  1. Is there anything an arbitrator can’t do? The arbitrator’s power does not extend to applications to prevent someone from doing something on a temporary basis, applications to commit someone to prison, nor does the arbitrator have any power over people who are not party to the arbitration (unless agreed by that person who is not a party). In these limited situations you will need to make the relevant application through the court. An arbitrator is not permitted to meet with a child (unlike a judge), but may instruct an independent social worker to meet a child instead (this would not necessitate an application to court).
  1. Can I appeal the arbitration award? The legal test for appealing an arbitration award is the same as the test for appealing a court decision. Appeals are rare and you should go into arbitration with the expectation that you will be legally bound by its outcome.

Charlotte is a solicitor, collaborative practitioner and mediator. She deals with complex financial issues arising from divorce and separation. Her work has a strong international dimension. As a French speaker she has the expertise to advise French clients and on cases with a French element. She is recommended in The Legal 500 UK and The Spear’s 500 Index.

To find out more about family arbitration and how it can be used to help resolve the issues in your family law case, please visit our dedicated family arbitration website page below.