By: Damian Stuart, Barrister and Arbitrator

As any politician would say in these circumstances, in answering the question about the use of arbitration, I must declare an interest. I am an Arbitrator in proceedings relating to the welfare of children.

So when I argue that there are many benefits to arbitration being a way of resolving disputes, you my dear reader would be forgiven for replying: “Well you would say that wouldn’t you?”

True, but allow me to ask you to put such thoughts to one side for a moment. After all, I shall also be telling you why arbitration is not for everyone.

Arbitration is a form of private dispute resolution where the parties agree to appoint an arbitrator to adjudicate on a dispute and to make a determination, with the parties agreeing that the decision will be binding upon them.

If ultimately a court order is necessary, the Court of Appeal has said that the arbitrator’s determination may be incorporated into an order unless the dissenting party can show that there has been a serious irregularity which has resulted or may result in substantial injustice – a test akin to that where one seeks leave to appeal.

So what are the benefits of arbitration?

They include the following:

  1. Arbitration can conclude proceedings significantly quicker that the court can, especially with current listing delays. In most cases, this can reduce the overall cost to the parents. The quicker resolution may also reduce the risk that is often seen in protracted proceedings of increased animosity resulting from the litigation process and which is not helpful to those needing to co-parent in the future;
  2. The parties may agree who their arbitrator is or have one chosen for them;
  3. Arbitrators are specialists in the field and as competent as a judge to make a determination of the issues;
  4. Together with the arbitrator, parties may tailor the proceedings to suit their own needs including in respect of the location of meetings, whether they are remote or not, what evidence is to be adduced and whether an expert is necessary;
  5. There is no need to undergo a MIAM;
  6. Arbitration proceedings are confidential;
  7. There is consistency of tribunal together with flexibility. Meetings can be arranged at short notice and at the convenience of all parties;
  8. Solicitors and counsel may be instructed as they would in court proceedings;
  9. Finality. The judiciary has been clear that the court will usually approve and uphold determinations of arbitrators.

Arbitration may be less costly for parties than court proceedings, but the cost of the arbitrator and of any expert witness falls to the parties and so it is not accessible to everyone.

Arbitration could be used for the following disputes:

  • Where and with whom a child should live;
  • The time spent with each parent;
  • Arrangements concerning the child’s upbringing such as which school the child should go to;
  • Relocation of children within England and Wales;
  • International relocation (temporary or permanent) to Hague Convention countries.

There are a number of cases where arbitration would not be suitable including:

  • Any case involving the liberty of a child or parent;
  • Child protection proceedings (such as those brought under Section 31of the Children Act 1989;
  • Cases where there are allegations which would lead to safeguarding concerns.

If the parties to extant private law court proceedings agree that they should instruct an arbitrator, then the proceedings will be stayed until the arbitration process has been completed. They may then be withdrawn (if the parties agree that, applying Section 1(5) not order is needed) or the court can be asked to put the arbitrator’s determination into the body of an order.

“So, Damian, what do I do if I am interested in going down the route of using arbitration to resolve a dispute regarding a child?” I hear you ask.

Well, I’m glad you did for I can tell you.

Parties may search for an arbitrator through their clerks and agree the identity of one. They may also go through the Institute of Family Law Arbitrators completing Form ARB1CS and they can offer suggestions that the parties may agree upon. In the event that the parties cannot agree, the Institute can determine the identity of the arbitrator.

How much does an arbitrator cost? Each is different depending on a number of factors. Parties will also have to pay the arbitrator the cost of any experts to be instructed. Discuss the potential costs or cost limits with an arbitrator or his/her clerks.

After an arbitrator is in place, they will arrange with the parties (either inwriting, remotely or in person) a way forward. This may mean that a timetable can be quickly agreed or there will have to be a more formal meeting (akin to a hearing).

An equivalent to a final hearing can (unless there is an expert instructed or complexity in terms of gathering evidence) can usually take place within a month of instructing an arbitrator, with an obligation of us to write and send out the final determination within a week of the hearing.

That’s quicker than it is usually possible to get a First Hearing Dispute Resolutions Appointment before a court.

One final point which those unfamiliar with arbitration may be asking: What do you call an arbitrator?

The answer is that there are no hard and fast rules. Personally, in my life, whether professional or otherwise, I don’t care as long as it is vaguely polite. I suspect that most arbitrators would object to things along the line of “Oi dude”, “Hey Mate” or the like. I guess that Sir/Madam or Mr/Mrs/Miss/Ms Thingy would be acceptable to most. Those things we call Judges (Judge, Your Honour or My Lord/Lady) are inappropriate as we are not Judges. The old fashioned tag for Magistrates (Your Worship) is equally inappropriate unless your chosen arbitrator is the local Mayor (I am not). I prefer most people to call me Damian as I used to think that Mr Stuart made me sound old (but I am now 51 so guess that I am no longer in my first flushes of youth), but I can see that Damian might seem a little too informal for such proceedings. I would advise parties or their representatives to check this from the outset with the arbitrator chosen.

More information can be found at www.ifla.org.uk

If you would wish to discuss arbitration further or enquire about my availability to act as an arbitrator in a case, please contact my wonderful clerks on 020 7242 0858 or at clerks@fourteen.co.uk