Arbitration can be a cheaper and quicker alternative to fighting a divorce through the Courts.

The problem

On a daily basis, we deal with a court system that is buckling under the pressure of high volumes of family litigation. Our clients can feel frustrated by the slow progress; waiting months for a court hearing with a judge who we did not choose and who may be dealing with several other cases at the same time.

Other options

There are, however, alternative ways of resolving your family disputes outside court. One option is mediation, as explained in more detail here. But it is not always possible for two people to come to an agreement in the context of a relationship breakdown. Another option now available for family disputes is arbitration, which resembles some aspects of court litigation, but with a number of advantages.

Arbitration can be used for financial remedies on divorce, issues relating to unmarried couples and civil partnerships, as well as children matters. If you wish, the process can take place in conjunction with ongoing mediation, or in parallel with court proceedings in order to bring your case to a close more quickly.

How it works

The parties sign an agreement to be bound by the decision of the arbitrator, who will be an experienced family lawyer (solicitor or barrister). The arbitrator will listen to both parties’ cases and make a final decision, which is binding, subject to the option to review or appeal in the same way as a final court judgment would be.

You select your arbitrator yourselves, instead of being randomly allocated a judge or lay magistrate. This means that, with your solicitor’s guidance, you can choose an arbitrator who has specialist knowledge of your particular type of dispute and the issues involved. Your chosen arbitrator will then be the person who deals with your case throughout the whole process. You will also have their full attention: they will not be dealing with other cases at the same time as yours, and they will have allocated time to properly read all your documents.

The arbitrator can hold meetings with the parties (and their legal advisers) at short notice, and these can be arranged to accommodate your personal commitments, including outside normal office hours. This allows you to obtain a speedier resolution than you would through the courts.

Not only can it save you time, but arbitration is completely confidential, so there is no risk of media presence. Meetings with the arbitrator take place at a private location of your choice, rather than a public court building.

Arbitration is also more flexible, not limited by the court rules and procedures, so you can tailor it to your individual needs: you decide how you want the process to work for your case. For example, if you have already reached an agreement between yourselves on some of the issues, you can ask your arbitrator to make a decision on a single or a few issues only. Or you can agree with the other party about the expert evidence to be deployed, which would usually require a formal application and the court’s permission.

If you need a decision on an interim or preliminary matter in advance of the arbitrator hearing the main dispute, this can be dealt with quickly and efficiently, including by telephone or “on paper” (i.e. in writing via email), rather than you and your lawyers having to attend an interim court hearing. For example, in a recent case of mine where the parties were unable to reach an agreement regarding expert evidence, with the arbitration just a few weeks away, we wrote to the arbitrator and they provided an interim decision within a few days. By contrast, in court proceedings we would have had to issue an interim application, which the court may or may not have had time to deal with at an interim hearing, and the final hearing date would likely have been delayed as a result.

Once the arbitrator has made their final decision, the parties will ask the court to approve it as a final court order, meaning the outcome is as binding and enforceable as if you had obtained an order via the court process.

There is of course a cost associated with instructing a private arbitrator, but there are accomplished arbitrators available to suit different budgets. It ought to be less expensive overall than going to court, since you achieve a faster outcome within a streamlined process. For example, partner William Healing has acted in some high conflict cases resolved through arbitration and, whilst the process did not reduce the acrimony between the parties, it did at least keep it contained and limit their costs, which benefitted both sides.

Alexiou Fisher Philipps has represented clients in a variety of cases which have been determined by arbitration involving both divorcing and unmarried couples. Partner Magnus Mill is also a qualified financial arbitrator and comments that: “it is inarguable that going to arbitration early would save a lot of people a lot of money”.

You can read more about arbitration on this page of the work that we do.

The author of this article is Anna Brown.