The second alternative to the court process is Arbitration.
Arbitration can take place if negotiations have not been successful or a private FDR has not been successful.
Arbitration is effectively ‘going private’ with a private hearing held in a private meeting room with an ‘Arbitrator’ rather than the more usual court room setting with the Judge. All Arbitrators are qualified and may be ex-judges, barristers or experienced solicitors. The meeting room may be in barristers’ chambers or solicitor’s office which clients find a more personal and comfortable experience
Arbitration is similar to the final hearing stage of the Court proceedings in financial remedy.
In the same way as a Judge’s decision is final and legally binding it is also the case with the ‘Arbitrator’ and their determination would be detailed in a Consent Order which would then be approved by the Court. Arbitration effectively offers the benefits of the court process without the time delays. Currently the delays within the court system mean that it may take many months or even years to bring a case to a final hearing.
The costs are paid jointly by the parties. Because the appointment can be arranged at the convenience of the parties and much sooner than the court can list a hearing going down this route could in the long run save the parties significant costs generated by the prolonged court process. An early settlement may also assist in alleviating some of the stress and financial hardship which may occur in a long drawn out process.
Prior to the Hearing there would normally be a planning meeting (known as a Directions Hearing in the court process) with the arbitrator which may be virtual or face to face.
It is important to note that both parties have to be agreeable to this form of resolution before it can progress.
Where arbitration works well is where there is a single issue in dispute. For instance, in the case of children, it may relate to a child’s schooling, a vacation or residence issue where there is a specific deadline which needs to be met.
Arbitration is not possible where there are complicated financial issues involved where evidence needs to be obtained from third parties which may include business valuations/assets or pension valuations etc. In these cases the more formal court process would still be the right option. It is also not appropriate in children cases where there are safeguarding issues involved.
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