As we are beginning to see lock down easing, there is still the knotty problem of the backlog of cases in the court system. I am not talking here about jury trials or criminal trials as those have whole other lot of problems. No. I am focusing on cases trying to sort out the financial matters or arrangements for the children. Those types of cases.
So, if you are a solicitor with one of these sorts of cases that you just can’t get over the line to settlement, how do you help your clients to get a decision, get closure and move on? We know, as solicitors, we are waiting months for dates. Arbitration will give you clients the answer. It will allow for a binding decision to be made by a third party. You become a problem solver and hey ho, everyone can move on.
Arbitration is new for many solicitors. We are a cautious bunch and everyone like to know what they are doing so trying something new can be a bit daunting. This is where this series of articles comes in. Addressing the practicalities. Here we go.
You think you might have a case that might be suitable for arbitration but you’ve never done it before. What do you do?
I suggest that either you phone an arbitrator and have a chat with them in broad terms about whether the case is suitable (I bet it is) and next steps.
When I get a call like this, I suggest that we set up a call with me and both solicitors so they can both hear at the same time what could be achieved by arbitrating. I do not charge for this. It usually last about 30 minutes and in it, we are discussing the options for process – directions hearing/me to make directions/make a direction to mediate/decision on paper/oral hearing – and the likely cost which is shared between the parties.
You can repeat this process with more than one arbitrator.
Next step then would be for each solicitor to speak to their client to explain the advantages and the cost.
So, you want to arbitrate then what
Between both the solicitors, you need to pick the arbitrator (if you really can’t decide, IFLA can pick one for you) then you complete the ARB1 either for children or finance. The ARB1 is the document that tells the arbitrator any issues that are agreed, the points that need to be decided and whether you think you want a paper based process or an oral hearing. You then send that to Resolution – sending by email is fine. They log it on behalf of IFLA and then Resolution contacts the arbitrator.
If you are telling an arbitrator what is agreed and what is not agreed, the arbitrator will leave the agreed areas alone and deal only with the disputed areas. This is why arbitration is great for building on the work done in mediation, in my view.
You can also have an arbitrator deal with a letter of instruction to an expert, if there is an issue over that or choice of an expert.
Arbitrators understand that this is a new area to many and they are very willing to help with the practicalities.
The arbitrator is asked if they want to accept the nomination. Most times, that would not come as a surprise to the arbitrator but if it does, the arbitrator might want to speak to both solicitors before accepting the appointment. Then, the arbitrator sends out their terms and conditions of business with the fee to be paid. The fee is paid upfront and certainly before the Award (in finances) or Determination (in children matters) is sent out.
Once the paperwork is done, it is then on to progressing the case. Catch up in the next article about that.
If you are have a case that you think could be resolved using arbitration, contact me.