What is family arbitration?
Family mediation has become increasingly popular over recent years as an alternative to court for resolving disputes, whether that be in relation to children or finances. Indeed, attending at least an initial exploratory mediation meeting is a mandatory requirement before court proceedings are issued, save for in a limited number of exceptional circumstances. However, given the current ‘lockdown’ situation as a result of the COVID-19 crisis, I can see another option becoming increasingly popular, namely family arbitration.
Arbitration is different to mediation in that, whilst still a form of private dispute resolution, parties to an arbitration enter into an agreement whereby they appoint a suitably qualified person to the arbitrator who will then adjudicate on a dispute and make an decision.
Crucially, the arbitrator’s decision becomes binding on the parties. This is the key difference to mediation. Whilst mediation can result in an agreement being reached, the agreement is not legally binding and is vulnerable to one party to the agreement reneging without sanction.
Arbitration can be used to resolve financial disputes and disputes concerning children. In financial matters the decision is known as an ‘award’ and in children matters the decision is called a ‘determination’. Due to the decision being binding on the parties the process is similar to court proceedings in that the arbitrator will produce a decision after reading, hearing and considering the evidence presented by each party.
Arbitration is not a new concept, but it is not yet widely used across this country although this may now change. The main reason for this is that arbitration could be a much quicker way of resolving a dispute as opposed to going through court proceedings. That could be true at any time, but particularly now as the court system is having to adapt to the COVID-19 crisis. Many court hearings are being adjourned and it could be a significant amount of time before they eventually take place.
There is no reason why arbitration can not take place remotely via videolink or phone.