What is family arbitration & do you need it?

Family arbitration is a means of settling issues relating to family law without the need for a full court hearing. It is mostly used to deal with issues relating to separating couples and their children regardless of whether the couples are married or in a civil partnership. Family arbitration offers many advantages over a standard court hearing.


The basics of family arbitration

Like mediation, arbitration is a way of resolving disputes outside the court process. Mediators aim to help the couple reach an agreement through discussion and negotiation. Arbitrators take decisions on behalf of a couple in much the same way as judges do. 

If mediation is successful, the resulting agreement will be presented to a court for final approval. In the vast majority of cases, it will be signed off without any changes being required. Where mediation is not successful (or the agreement is rejected), a couple may opt for arbitration in preference to a standard court hearing. If they do, then the arbitrator will follow the same process as a judge. 

They will create a decision that will be presumed to be binding although it may still need to be submitted to the court for final approval. As with mediation, courts will generally sign off on arbitration judgements without any changes being required. In principle, decisions can be appealed. In practice, this is highly unusual.

The decision to use arbitration rather than a standard court hearing must be a joint one. Nobody can be forced to use it if they do not wish to. With that said, for most separating couples, arbitration is a far more compelling option than a standard court hearing.


Arbitration is much faster than a court hearing

Even before COVID19, courts were strongly encouraging people to use alternative dispute resolution (ADR) instead of court hearings. This helped to free up court time for cases that really did need to be heard in that forum. The pandemic and its effects have made courts even more eager to steer people towards ADRs. COVID19 has already created a significant backlog and it’s still growing.


There is much less likelihood of a hearing being rescheduled

Court schedules are created on the basis of educated guesses. Unfortunately, even the most experienced court officials cannot predict the duration of cases with total accuracy. This means that it’s always been fairly common for hearings to have to be rescheduled at short notice. COVID19 has made this even more of an issue as courts have higher instances of illness/self-isolation to deal with.


You can appoint your own arbitrator

Where you go to a court hearing, you get whatever judge is free to hear your case. If you choose arbitration, you can choose your own arbitrator. If you don’t know how to choose an arbitrator, you can request one be appointed for you. 

Either way, your arbitrator will be a specialist in family law. This is not guaranteed if your case is heard by a judge. A judge will know enough family law to deal with family law cases but may or may not be a specialist in it.


You have a greater choice of location

One of the reasons why arbitration hearings have much less waiting time than standard court cases is that they can take place in a much wider variety of locations. Really, all that’s required is a place people can be both comfortable and private. You can even have remote arbitration hearings via video link.


You can keep your issues private

Court hearings are assumed to be public unless there is a compelling reason for making them private. Arbitration hearings, by contrast, are assumed to be private.


Arbitration is much more affordable

With arbitration, you pay for the arbitrator’s time plus your legal representation if you choose to have it. This is not, strictly speaking, required but can be advisable. As there is no court hearing, there is no court fee. This can significantly reduce the cost of the hearing.


Read Arbitration for more information and remember to Ask a lawyer if you have any questions.