This article follows on from Part 1, which, dear reader, I am sure you could have guessed from the title….
So, you’ve agreed to arbitrate, you’ve chosen the arbitrator, you’ve completed the ARB1 form setting out what is agreed/not agreed in broad terms and you have sent the ARB1 to IFLA. IFLA have sent it to the arbitrator to ask if the arbitrator will accept the nomination. The arbitrator says yes, they will accept. What next?
Next, I would expect both solicitors/parties to get an email from the arbitrator sending them the terms and conditions of business of the arbitrator and setting the fee to be paid. The fee would be shared equally by both parties and is paid up front, usually, and certainly before the Award (finances) or Determination (children) is released.
Once the terms and conditions are dealt with, then I would expect the arbitrator to fix a meeting with both solicitors and their clients to set out the process for dealing with the issues in dispute. You do not have to have the clients in the meeting. It is up to the parties. This first meeting could be face to face or, more commonly, by telephone/Zoom. And that was the case even pre-COVID19. The arbitrator will want to know if you have suggestions, agreed or otherwise, about the process you want to adopt to resolve issues. You might have been through mediation, for example and want the arbitrator to have that paperwork, both agreeing to waive privilege. You might have partly undertaken disclosure and need that finalising then a decision made. You might have only a couple of fine areas that you cannot agree on and would like that to be dealt with by way of submissions on paper. It really is that flexible.
If the parties cannot agree on the directions that should be made, the arbitrator will decide. Sometimes, parties want the arbitrator just to make the directions for them.
If you get stuck along the way, you can email the arbitrator to ask for a directions meeting. Any emails to the arbitrator must have the other party copied in and the arbitrator will not respond to just one of you. That gives far more flexibility for the parties. I am willing to bet that an arbitrator would be able to give you a directions meeting probably same day. You won’t get that from a court as the workload would not facilitate that.
If you want oral hearings, then the parties would be paying for the rental of rooms/venue and travel costs of the arbitrators.
The law applied is the same. What you have flexibility over is the process and area of dispute.
I am involved with The Certainty Project which combines arbitration and mediation in a way that I think truly makes the best of both. So, you could agree to arbitrate and at the first meeting in, say, a finance matter, the arbitrator will give directions for financial disclosure and a referral to mediation, staying the arbitration proceedings for a period of a few weeks to allow a discrete number of mediation sessions to take place on the basis that if the parties reach an agreement in arbitration, the arbitrator can be notified and turn that into an Award. Alternatively, if there are issues that are agreed, the arbitrator can be notified of that too and can then go on to make a decision on the areas that were not agreed, leaving the agreed areas as they were and taking those agreements into consideration. The idea would be for the mediation sessions to be not more than 4 over a period of, say, 2 to 3 months so that the financial information given does not go out of date.
Personally, I think this is making the best use of what we have and building on mediation without parties having to start again if mediation fails. You also have the consistency of one arbitrator and quick access to them.
I also think that this is perfect for cases where there are not pots and pots of money. Sometimes, couples just want or need a decision made so that they can move on with their lives. The court process, of course, has to be used by some but there is an alternative to the ‘one size fits all’ process, the hidden costs in court proceedings and the delay in getting matters to a final hearing. Solicitors willing to use all of the tools available to them become known as proactive problem solvers and I think would begin to attract a new area of clientele from the pool of those who would not consider contacting a solicitor because they are mostly agreed and they are worried about cost and the time it takes from having to start all over again.
The Award given by the arbitrator is very much like a judgment. The solicitors can then turn that into a consent order and make use of the protocol for approval of an order from an arbitrated matter or they can ask the arbitrator to draft the order for them to lodge. Most solicitors draft the order themselves.
And there you have it. Easy isn’t it? And it allows you, as the solicitor, to focus on the issues and resolving those. Give it a go.
If you are interested in arbitrating a matter, contact me.