Family Law Arbitration
Family law arbitration is the latest development in alternative dispute resolution (ADR) – alternatives to using the Court process to resolve family issues. Our family department can also assist with other ADR options such as mediation and collaborative law.
Tim Melville-Walker of our family department is amongst the first solicitors to be trained as family law arbitrators. The scheme is administered and regulated by the Institute of Family Law Arbitrators (IFLA – www.ifla.org.uk) and supported by the senior judiciary.
Arbitration has been around for a long time and is used extensively in commercial and shipping law. Legal authority comes from the Arbitration Act 1996 and the Family Law Arbitration Rules 2015. Essentially it provides a binding decision on family law financial issues without involving the Court.
Both parties must agree to enter into arbitration and to the appointment of the particular arbitrator. However, once arbitration is started it cannot be ended until the arbitrator makes a final binding award, unless both parties agree.
Family law arbitration is currently limited to dealing with the financial issues arising from a relationship breakdown, whether that is divorce, civil partnership dissolution or separation of unmarried parties. It cannot decide issues of where children live or how often they should see each of the parents, for example. Those points however can still be addressed by mediation and collaborative law.
The great advantage of arbitration is that it is entirely controlled by the parties: you decide who the arbitrator is, what they decide, how it is decided and when.
The arbitrator can deal with the whole issue for you, or simply deal with a specific point or procedural issue. For example, how a house or company should be valued.
You also decide how that is dealt with – arbitrators can hold full contested hearings and involve expert witnesses, just as a Court can, but that is not always necessary. You might prefer the arbitrator to deal with a point simply by looking at papers put forward by both parties, without any hearing at all. If a hearing is needed, it can conducted by telephone, video conference or any other means agreed – there is total flexibility.
Perhaps most importantly, you control when this happens – with the Courts increasingly busy, and a wait of several months for a thirty minute appointment with the Judge increasingly common, this is a very valuable aspect of arbitration.
The decision (referred to as the “Award”) of an arbitrator is binding on the parties and can only be appealed in very limited circumstances. If the rules require the parties to apply to the Court for an Order in the same terms as the arbitration award, a Court may require amendments to the award before giving its approval, but that is unlikely. The President of the Family Division in the case of S v S (a case actually from this area) confirmed the Court will support arbitrator awards save only in extreme cases (which could have been appealed under the arbitration rules in any event).
Tim Melville-Walker is the firm’s family law arbitrator. He is a partner in the family department of MacDonald Oates and specialises entirely in family law matters. Tim is a Resolution Accredited Specialist, a member of The Law Society Advanced Family Law Panel and a trained collaborative lawyer. He is highly experienced in resolving difficult and complex matters and in minimising the upset and the cost involved.
Tim will have conduct of the matter throughout, so you will always know who you are dealing with. This contrasts with the Courts who can rarely provide the same Judge more than once. With the exception of the Principal Registry of the Family Division in London, Judges also have to deal with all aspects of law, so cannot specialise in family law.
Tim Melville-Walker is also a member of the Forum of Family Arbitrators and keenly involved in the family law arbitration movement in this country.
Private Financial Dispute Resolution Hearing (FDR)
Part of the Court procedure for resolving finances upon divorce or civil partnership dissolution is the FDR Hearing. At this Hearing the Judge considers all offers which have been made and hears briefly from both parties as to why they think their solution is the right one. That Judge then gives his or her opinion as to what the likely outcome of the case would be, if a Final Hearing were conducted. He or she will also comment on the merits of the respective offers, and the cost and risks of proceeding to a Final Hearing.
Experience has shown the value of these Hearings – parties who have become entrenched in their position or who are pursuing unrealistic expectations, are told quite frankly how realistic their position is. Hearing it from a tribunal, rather than just the other party or their solicitor, is a powerful message. The Judge conducting the FDR then has no further substantive dealings with the case, because he will have seen even the privileged offers that have been made.
We can conduct a similar hearing, giving an indication as to the likely outcome of a final arbitration or Court hearing but, just as with the FDR, that decision is not binding because of the nature of the FDR. We would not then be able to conduct further arbitration that substantively decides the matter if we have seen privileged offers. Decisions about procedure etc. might still be possible however.
We usually work on an hourly rate for our work.
We do not give a standard set fee for arbitration because every case is different – some cases will require several days of Final Hearing and various procedural Hearings before that, whereas some could simply be decided by reading papers. Thus a standard fee that covers one would be completely unfair for another.
If you would like to talk about what arbitration is likely to cost, please do telephone us. We may be able to agree a specific fee for the particular work that you need. Remember – the parties control how the arbitration is conducted so, unlike the Court proceedings, you can largely control what it costs. Do note however the parties’ own legal fees (for their own solicitors/barristers) are separate from the costs of the arbitrator.
Please do not hesitate to contact Tim Melville-Walker to discuss any potential arbitration matter informally, without commitment. If you do decide to proceed to arbitration, the ARB1 form will need to be completed and sent to IFLA but that is effectively the final step before arbitration commences. We can of course guide you through the whole process, from start to finish.