Family arbitration FAQs

Arbitration has been used in a commercial setting for a long time, now family arbitration is becoming increasingly popular for family law disputes.

What is family arbitration?

Arbitration is a form of private dispute resolution, which takes place outside of court. The couple/parents enter into an agreement to appoint a specialist lawyer (an arbitrator) to adjudicate a dispute. The couple/parents are bound by the decision of the arbitrator which is called an Award (finances) or a Determination (children).

Why should I arbitrate?

The family courts are currently inundated with cases and under resourced, this is causing a huge delay in cases being dealt with. This means for families, matters can take at least 12 to 18 months. 

The court is frequently cancelling hearings at the last minute, due to there being insufficient court staff or sufficient time on the day. This means that our clients have paid all the fees for the preparation of the hearing and paid their barrister, only for their case to not go ahead. Those fees remain payable which is hugely unsatisfactory. 

Arbitration has a number of advantages over court proceedings and is often chosen for its speed of process; confidentiality; flexibility; potential cost savings and for the ability to choose the arbitrator. Arbitration can also take place in a less formal setting as you can choose the location – this means you could attend your lawyers’ office, the barristers’ chambers or even hire a venue such as a hotel.  

Surprisingly there is no guarantee that a Judge will have family experience. With Arbitration you select your arbitrator and we will help you pick someone with the correct experience and skills. This is important when there are complex elements to your case.   

Arbitration is a very bespoke process which can be tailored to meet your needs including, where and when to have the meetings, agreeing the points to be dealt with in arbitration and even having matters dealt with on paper only in certain situations.

Is family arbitration binding?

Yes. Arbitration is voluntary but at the outset, the couple/parents sign an agreement which confirms this. The arbitrator may deliver a written or oral judgment. The decision is called an Award in finance matters and a Determination in children matters. A court will not only endorse awards and determinations made under the IFLA (Institute of Family Law Arbitrators) schemes, but it will also enforce them if required.

It is possible to appeal a decision made by an arbitrator, but the circumstances are limited and very similar to those for appealing a judge’s decision in court. You should enter in to arbitration prepared to accept the outcome. 

Who pays for the arbitrator?

Typically, the cost of the arbitrator is shared equally between the couple/parents. However, the couple/parents can agree between them how best to meet the cost of the arbitrator.

Is family arbitration more expensive than court proceedings?

Whilst the couple/parents have to pay for an arbitrator, as the process of arbitration can often be undertaken and concluded far more quickly than would happen in court proceedings, it usually results in significant cost savings for them.

You can feel confident that the case will progress in accordance with the timetable set by the arbitrator, it is very unlikely that any hearing will be cancelled at short notice resulting in wasted fees. Because arbitration can proceed at a good pace the fees are often lower as the case finishes quicker.

Who can be the arbitrator?

The arbitrator will be an experienced family lawyer who is accredited as an arbitrator by the Institute of Family Law Arbitrators (IFLA). You can find a database of accredited arbitrators here

How is the arbitrator chosen?

Usually, one person will propose three IFLA arbitrators for the other party to select from. We can help you with who to propose based on our local knowledge.    

If agreement cannot be reached as to the identity of the arbitrator, they can agree to ask the institute to select an arbitrator.

What disputes can be dealt with by family arbitration?

Any financial and property disputes arising from family relationships and most children disputes, providing there are no safeguarding concerns.

Arbitration is increasingly being used when there have been negotiations between the couple/parents, and they have managed to come to an agreement on all but a few points: an arbitrator can then deal with these discrete points which remain in dispute.

Can I arbitrate if I have started court proceedings?

Yes. Judges have the power to pause court proceedings to give the couple/parents the opportunity to use arbitration. Due to the overwhelming number of cases and the backlog at the court new rules have been announced which require the couple/parents to complete a form indicating their views on dispute resolution methods they would be open to trying, in order to resolve their case away from court. A judge can order the case to be paused to allow the couple/parents to undertake non-court dispute resolution, such as arbitration. Judges are actively encouraging alternative methods to resolve disputes, this is to allow the courts time to deal with the most serious issues such as child protection.

You may first become aware of arbitration when your court hearing is cancelled at the last minute to try and avoid wasted legal fees.

How can Moore Barlow help?

Our experienced Family team will be able to advise you on whether family arbitration is suitable in your case, and on the process generally. If arbitration is not suitable, they will be able to discuss other options with you.

If you would like further information, please do not hesitate to contact one of the team who would be pleased to discuss your needs.