What Is Family Law Arbitration? Should We Use It?

When divorcing spouses or separating parents want to avoid court but can't reach agreement, they may turn to arbitration. In the U.K., unlike some places, arbitrators can determine child arrangements.

What is family law arbitration?

A family arbitrator is similar to a judge in that they listen to arguments and decide what the family members must do. Though arbitrators are sometimes informally referred to as "private judges", it's more accurate to say that they behave like judges and that the court oversees their work.

When the arbitrator decides a parenting matter, it's called a determination. When they decide a financial matter, it's called an award. Both types of decision can be part of divorce arbitration.

The decision is presented to the court, at which point it becomes binding. If one person is unhappy with the decision, they may be able to appeal it, but meanwhile they have to follow the order.

Arbitrating parenting arrangements

Just as in court, parents begin by providing written statements of case and disclosing relevant information to each other. At a meeting or hearing, they can argue their side, and the arbitrator may limit how long they speak. Parents can call expert witnesses, and the arbitrator may also appoint experts to provide more information.

You can be represented by a solicitor during the arbitration process. Alternatively, you may bring any helper you like (like a McKenzie Friend) unless the arbitrator decides that their participation is disruptive.

In Scotland, a child who's at least 12 years old may give their opinion directly to the arbitrator. Elsewhere in the U.K., the arbitrator can't meet with your child directly but may appoint an independent social worker to do so.

Should we use family law arbitration?

First, think about whether you and the other parent have spelled out your agreements on as many issues as you can. If you can agree on a given matter, you won't need an arbitrator to decide for you.

Next, be aware that you can't take parenting issues to family arbitration if there are safeguarding concerns. If you aren't certain whether this applies to you, consult with a professional.

Many parents appreciate inviting someone to decide their case and paying them privately, as it gives them a sense of control. An arbitrator may give parents additional time to speak their mind, which helps parents "feel heard", whereas a judge is likely to be short on time. Parents can feel secure that the arbitrator they picked will stick with their case; by contrast, they can't control the court's assignment of a judge.

Arbitration tends to move faster than court and gives parents some control over the timeline. Expert reports may be shorter and to the point. The overall environment may feel less formal than court.

Parents with religious beliefs about parenting often prefer arbitration because they can choose an arbitrator who shares their values, attitudes and cultural understandings.

Arbitrators can cost up to £2,500 per day. This is in addition to what you pay your solicitor (if any).

Imagine how you and the other parent will feel once the arbitration is complete. Will you feel a sense of clarity and relief, and will you respect the order? Or will one of you resent it and wish you'd gone to court? You'll be in touch with each other about your co-parenting responsibilities, so your feelings may affect your dynamic going forward.

Research other alternative dispute resolution methods in the U.K. to be sure you're picking the one that's best for you.

International family arbitration

If the parents live in different countries, they may need to hire an arbitrator in a third country, according to guidelines for international family law arbitration.

If they already have an arbitration decision and then one moves to another country, it's possible that the new country will honour the decision. Most countries recognise each other's arbitration decisions according to an international agreement called the New York Convention; however, this convention doesn't specifically address family law arbitration. Consult with a legal professional to discuss your situation.

The difference between mediation and arbitration

In the U.K., courts expect parents to try an alternative dispute resolution method (usually mediation) to avoid a trial.

A mediator structures a conversation to help them reach agreement, then writes up any agreements to present to the court. The mediator can't force them into an arrangement.

Arbitration is different because the arbitrator makes decisions. Once parents agree to the process, they have to accept the legally binding outcome.

Whichever method you use, it's helpful to draft a parenting plan and a residence and contact schedule to clearly present your wishes.

While it's common for parents to try mediation before or during arbitration, usually the person who serves as your mediator won't also be your arbitrator. This is to avoid bias. Look for those details in your contract.

Getting started with arbitration

Parents fill out an agreement to arbitrate (in Scotland or elsewhere in the U.K. for parenting matters or financial matters), and the arbitrator they've selected responds with a letter of acceptance.

Parents can then explain to the arbitrator which issues they need to resolve and decide which procedures they'll use. The arbitration may be done on paper, in person (at a place of their choosing) or online. The arbitrator informs them how much the entire process will cost.

The parents are trusting the arbitrator they've selected to listen to them, understand their case, respond promptly to their inquiries and make a fair decision.

Understanding that the arbitrator's decision will be binding, parents sign an arbitration agreement that commits them to the process.

Family law arbitration rules in the UK

In England, Wales and Northern Ireland, the process is set by the Institute of Family Law Arbitrators, which has two sets of arbitration rules: the Children Scheme for determining parenting disputes and the Financial Scheme for awarding money or property.

In Scotland, the process is set by the Family Law Arbitration Group Scotland, which publishes its own arbitration rules.

Preparing for family law arbitration

Preparation is as important when you decide parenting arrangements through an alternative method as when you decide them in a courtroom. You still want to present convincing information — but to the other parent or the arbitrator rather than to the court.

You may want to bring a parenting journal, a list of child-related expenses and other data.

The Custody X Change app enables you to prepare all this in one place.

With a parenting plan template, customisable custody calendars, a parenting journal, an expense tracker and beyond, Custody X Change makes sure you're prepared for any method of deciding your child arrangements. It makes sure you're prepared to get what's best for your child.