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Arbitration Explained Part 2 |
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Arbitration is likely to be more expensive than mediation or collaboration because of the Arbitrator’s fees. It may well, however, be cheaper than the court process because a case being dealt with by way of arbitration should be dealt with quicker than the time it can take for a case being dealt with through the court process to get to a final hearing.
Advantages
Time - Unlike the Court process which can take over a year to resolve an Arbitrator should be able to deal with the case, broadly speaking, when the parties want perhaps within a couple of months of Forms E being exchanged.
Costs
As a result of the shortened timetable the barrister’s and solicitor’s involvement will be less which should more than mitigate the increased cost of appointing an Arbitrator who will also charge for his or her time.
Flexibility
The parties can choose the issues which they want the Arbitrator to deal with and hearings can be timed to suit their diaries unlike the court process where hearings are fixed and it is necessary to apply and pay a court fee if an adjournment is requested.
Expert
Arbitrators have to complete specialist training and in order to do the training are already family solicitors, barristers or judges so will have experience of family law. With the court process it is possible to have a judge who has not previously worked in the area of family law and may not be familiar with the way family cases are generally dealt with by other judges.
Choice of Arbitrator
The parties can choose an Arbitrator that both solicitors are happy with which will hopefully result in the parties’ finding any decision easier to accept.
Disadvantages
Less opportunity to settle
The fact that the process is quicker can mean that the parties do not focus their minds on trying to settle the case. Most lawyers would agree that it is much easier to live with a settlement that both of the couple have had input into and where a decision is imposed it can lead to bitterness and resentment for many years into the future.
Cost
Although cheaper than the Court process, arbitration is normally more expensive than collaboration of mediation because of the Arbitrator’s fees. If, however, it is unlikely that a case will be resolved through collaboration or mediation then it would be uneconomic to try either of these processes first. It is sensible therefore to discuss all options with your solicitor.
Issues over choice of Arbitrator
The couple will need to agree the choice of Arbitrator (it is possible in the future the Institute of Arbitrators will appointment someone where the parties cannot agree) and this may lead to people trying to choose an Arbitrator who has a reputation for being for example husband or wife biased e.g. more or less likely to order a clean break. There may be ongoing resentment if one feels that the other got his/her way over the choice of Arbitrator.
A decision is imposed
One or both may be unhappy with all or some aspects of the Arbitrator’s decision which will be hard to appeal. This can lead to resentment and bad feeling going forward which can impact on the future relationship e.g. the ability to co-parent.
Written by Kirstie Law Solicitor, Collaborative Lawyer and Mediator
at Thomson Snell & Passmore. Visit www.ts-p.co.uk for further information.
PHOTO CREDIT: UNKNOWN
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