The parties and/or their lawyers agree that they wish to use arbitration. They should discuss which arbitrator they would like to appoint if they have someone in mind, or alternatively contact the Institute of Family Law Arbitrators (IFLA). Should you wish to use Peter Martin, you should contact him on a joint basis to confirm if he is willing to arbitrate, his availability and the confirmed cost.
The formal process begins with the completion and signing of the appropriate arbitration application form (ARB1FS for finances and ARB1CS for children). The form allows you to ask for a named arbitrator or request that the IFLA selects a suitable person from its panel. The form is sent to the IFLA administrator, preferably by email.
The named or appointed arbitrator will contact you to discuss the terms of the appointment – including the costs. All correspondence with the arbitrator must be copied to all parties concerned. With this in mind, using email is often easier.
Many arbitrators will offer a free, “no charge no commitment” meeting before terms are signed. This gives the lawyers and the parties an opportunity to meet the arbitrator. The arbitrator will want to be satisfied that everyone understands the process, their own obligations and to ensure that the matter in question is indeed arbitrable.
Once the parties and arbitrator agree the terms, the arbitration formally gets underway. The process from here on is governed by the relevant IFLA rules and the Arbitration Act 1996. Most importantly, as the initial document will set out, the parties agree to be bound by the arbitrator’s decision. There will also be an undertaking that parties will not apply to the court except in connection with the arbitration or to seek some relief that is not otherwise available (such as a financial injunction or a prohibited steps order).
The procedure to be adopted will need to be agreed. The dispute may be determined by representations on paper only, or following a hearing, or a hearing with oral evidence from the parties. The best procedure will depend on the nature of the dispute, with the option to adapt the process to suit the circumstances of the case. Indeed, if the arbitrator and parties agree that it is the quickest and most efficient option, an entirely bespoke format may be adopted.
Usually the arbitrator will conduct a case management conference at the start of the arbitration, either in person or over the phone. This is an opportunity to discuss procedural issues. Parties will usually attend in person if a preliminary meeting has not been held. During the course of the arbitration any further decisions about procedure will be taken by the arbitrator after due consultation with the parties. Once again, this can be done via conference call or by email. It is possible for the arbitrator to impose a strict timetable to avoid unnecessary delays.
Assuming there is a final hearing (and the matter is not dealt with on the papers), then the arbitrator and parties will fix the date, time and venue for the session. The parties will need to agree to cover the costs of hiring a specific venue if the arbitrator is unable to accommodate the hearing at their own offices as we are (or if a different venue is preferred). Parties will also need to agree the arrangements for the recording and transcription of the hearing and the relevant costs.
Following the hearing, the arbitrator will produce his award (the term used in financial cases) or determination (in children cases). The decision must be in writing and delivered promptly. There will normally be a short delay, of perhaps a week, for the document to be produced. The arbitrator’s fee must be settled prior to the delivery of the award or determination.
Where the issue would be considered a financial remedy case in court, or else relates to child arrangements, the agreement requires you, where necessary, to apply to the court for a Consent Order reflecting the award or determination. A Judge will make the order and once it has been made, it can be enforced in the usual way.
If the arbitration involves a purely civil claim, the parties can apply to the court for permission to enforce the award as if it were a court judgment or order.