Most people, when they come to see me about marriage breakdown, divorce and finances say that what they want is a ‘fair’ outcome and they would like matters to be resolved smoothly, with the minimum of upset – and, of course, legal costs.
Most people are aware of the option of mediation. This is where you and your former partner meet with a neutral mediator who leads and encourages you to work together to try to resolve your own situation on terms that you are both happy with. Mediation has been around for quite some time in family law matters but it was only when the court rules were changed to make attendance at a mediation meeting mandatory that mediation really entered into the everyday language for resolving disputes.
Mediation is still voluntary, although a court can direct that you try it if you have not. The mediator can’t make decisions for you, so what if you get ‘stuck’ on a particular issue or two? Step forward arbitration.
Arbitration is not like mediation. You both have to agree to arbitrate but once you do, you cannot just change your mind. The arbitrator will make a decision on the issues they are asked to decide on. You are both bound by those issues. The arbitrator is like your personal, fast track judge and their decision can only be challenged if they get the law wrong – the same as for a judge.
I really do not know why arbitration is not being used more in finance cases. I think because it is new, perhaps members of the legal profession are not quite sure how it works or think it is just for ‘big money’ cases. I think arbitration is perfect for the situation that most people find themselves in. They have some money – but not enough to buy two houses and live as they did. They have agreed a lot of things – but there are some issues they just cannot agree on. They want a fast, cost effective solution and they can’t get there without someone else stepping in and deciding it with finality. They both want to move on.
The beauty of arbitration is that it is so flexible. If you have solicitors, you can keep them. If you want a decision on two issues but have agreed, say, on the other three, you can tell the arbitrator that and the arbitrator will not interfere with your agreement. Not so in court proceedings when the judge will be looking at everything again and can override an agreement if they think they should.
You could have a decision made on paper and by that I mean you and your partner agree what money and property you have, who has what income and mortgage capacity and then ask the arbitrator to make a decision based on that information.
It is quick. An arbitration can take as little time as you want. There are several reports of a concluded Arbitration Award being made in less than a month. There is a fast track procedure to turn the Arbitration Award into a court order as the court is basically rubber stamping the Award.
You have the same arbitrator throughout and not a different judge each time. You can have hearings by telephone, Skype, in the evenings, at the weekend – obviously dependent on the flexibility of your arbitrator.
If you have been mediating and reached an agreement on most but not all issues then I say why not use that as an opportunity to go to arbitration to resolve those last issues, rather than starting all over again with court proceedings.
Make no mistake, court proceedings should be the last option. They can be expensive as there are mandatory documents that have to be produced for the court along the way. There is a ‘one size fits all’ process (not the flexibility of arbitration) and the court delays are really significant at the moment. At the time of writing (July 2018) it is not uncommon to be waiting 6 months for a final hearing and for the court process over all to take 12 to 18 months.
If you are interested in arbitration in your matter and reaching a speedy, confidential conclusion, please do contact me or ask your solicitor to contact me on your behalf.
Arbitration…. For the nation!