Family Arbitration

What is family arbitration?

Like family mediation and collaborative law, family arbitration is all about resolving family law disputes outside of court. However family arbitration is subtly different from either of these other more established family law dispute resolution approaches.

The parties in dispute enter into an agreement onto which a specially qualified and accredited family arbitrator [often an experienced divorce solicitor or barrister] is appointed to adjudicate and produce a clear and binding result to resolve the conflict.

It is usually applied during a divorce or a separation and in England and Wales, family law arbitration is a scheme run by the Institute of Family Law Arbitrators, which allows couples to resolve financial issues which arise from a divorce, whether this occurs in the UK or abroad.

How does family arbitration work?

The new Family Law Arbitration scheme, only launched in February 2012, gives couples the option of resolving their disputes outside of the court. Once an Arbitrator has been chosen by the couple to deal with their case, the Arbitrator then has to remain involved with the case until a final decision is reached. Any decision made in the arbitration process is legally binding and can be enforced in court proceedings by a District Judge.

What issues can family arbitration cover?

Family arbitration deals with any issue or number of issues which may need to be resolved during divorce proceedings and these include any disputes regarding finances and property, the marriage and why it broke down, judicial separation or reasons for annulling the marriage, breakdown of any civil partnership along with any financial provisions, co-habitation, the ending of co-habitation along with who will share parental responsibility can all be covered by family arbitration. It also allows for provisions to be made for any dependants from the deceased’s estate.

One particular feature of family arbitration is, unlike going to court, it is possible to deal with a discrete issue – so, for example, in looking at financial issues, the court will consider all family assets, family arbitration could, for example, limited scope, just to say maintenance, or pensions or say the former matrimonial home.

When can I use family arbitration?

Arbitration can be used to resolve any financial or property issues which you can’t reach an agreement on after your relationship has broken down. The IFLA scheme (‘Institute for Family Law Arbitrators’) covers all financial and property disputes in family relationships. It resolves the financial consequences of divorce, however no legal aid is available for these proceedings.

Family arbitration can be used for all marriages under the Matrimonial Causes Act 1973; The Inheritance of the Provision for Family and Dependents Act 1975, (IPFDA), Part III of the Matrimonial and Family Proceedings Act, (MPFA) 1984, Scheme 1 of the Children’s Act, Trusts of Land and Appointment of Trustees Act 1996, Civil Partnership Act and the Married Women’s Property Act 1882

 Is my case suitable for family arbitration?

In situations where you need evidence from third parties, or there’s a risk that your partner could hide assets, then family arbitration might not be suitable as an agreement might not be reached.

Arbitration is however a more cost-effective solution than solving your financial issues in court. It also gives both parties a major say in how things proceedings are run in terms of when proceedings happen and how to handle financial disclosure.

Family arbitration – how does it differ from family mediation and collaborative law?

The difference between family arbitration and family mediation is that a mediator will help each party to reach their own agreement in their dispute, while an arbitrator will listen to both parties and reach his own decision.

Arbitration is binding and means both sides must fulfil their part in that decision, while mediation isn’t binding, it’s up to the affected parties whether they choose to abide by the decision which is reached.

What are the advantages of family arbitration?

The main advantage of family arbitration is the speed by which a dispute can be resolved. As soon as an arbitrator is willing to deal with matters, it’s up to the parties to agree on a timetable by which to take action. Family arbitration cases are also confidential, flexible and the costs are considerably less than court proceedings. The parties seeking to resolve their disputes can also choose their arbitrator under the IFLA scheme, whereas in court, the parties wouldn’t be able to decide on a judge.

Family arbitration – an alternative to court?

Family arbitration is a good alternative to court as it can resolve family disputes regarding finances and property, even commercial disputes. The benefits are it can allow couples to reach an agreement without having to go through the expense of the courts. A family arbitration law allows the parties to share the costs equally although the arbitrator has the power to make an order where one party pays more than the equal share. Any legal advice received during the process is paid for separately by the parties involved.

At the end of the arbitration process, an award will be issued which is binding between the parties. This is the same as if the decision has been enforced by the courts.

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