Is Arbitration legally binding
Well I asked this question of Arbitrators who are, let’s face it, lawyers – so not surprisingly, I got both the ‘technically correct’ answers as well as the ‘in real life’ answers:
“It isn’t correct to say that an arbitrator’s decision is legally binding. Under English law it is still necessary to get the approval of the court on any arbitrator’s decision (“Award”).
There’s a recent case that basically says that the court will almost invariably approve an arbitrator’s award but there always needs to be a final step in getting the court’s approval, before an order is final and enforceable.” Alexander Chandler (Chambers of Deborah Eaton QC and Philip Marshall QC).
So it is clear that a decision by an Arbitrator can be easily turned into a court order and made binding in law, so as far as the divorcing couple are concerned, they are entering into a process where they need to accept the outcome in advance, whatever it may be. Otherwise they make a mockery of the process and lose all the benefits of saving time, money and potentially drawing their children into a war zone.
But it is the finality of the decision that makes it so very powerful as a way of helping a couple to let go of the divorce and bring that part of their lives to a close.
And because it is a final decision that they have both signed up for – not one hoisted on them by a judge – they are more likely to accept it. One of the issues with combative court divorces is the number of times litigants continue the fight with new battles over the ensuing years as the war rages on.
“Arbitration, as a process, is guaranteed to get an outcome. The Award (decision) of the Arbitratoris binding on the couple in almost all circumstances. It remains open to the couple to reach an agreement between themselves if they can, but if they cannot, they will receive a reasoned decision from the Arbitrator in a format which can quickly be converted into a court order within their divorce”. Oliver Gravell, Owner Birketts LLP
But why is the legal solidity of Arbitration so important?
In the emotional chaos of divorce, a key benefit of arbitration, is knowing that an issue can be resolved cleanly by an expert whom both the couple trust, and that the decision will stick legally so there will be no need to be dragged into court at a later date.
“As the Arbitration process is private and hearings, if indeed they are necessary (some matters can be settled on representations by the parties or their advisers on paperwork), can take place at the venue of the couples’ choice.
The award (Arbitrator’s decision) once made by the Arbitrator is final and binding on the parties unlike Mediation and negotiations between solicitors. The parties will generally apply to the Court for an Order confirming the award.” Olive McCarthy, Breeze & Wyles
Whatever the legal process involved in making an Arbitrator’s decision stick in law, the reality is that couples can feel confident that the decision they are paying for is going to lead to an answer, and so peace of mind, and the opportunity to keep the mediation process going or to round off the process as a whole and bring it to a close.
It is the control the couple have that is significant. On the divorce journey they choose the Arbitrator together; they decide on what points they want a decision made and they set the time scales along with the Arbitrator. In trying to avoid crashing into a bitter protracted divorce if their mediation should founder, they can gain a sense of security by having another tool in the divorce toolbox at their disposal.
‘Clunk Click’ every divorce trip
I don’t expect to have a car accident when I get behind the wheel, but I do bother to have a safety belt working properly in my car. You don’t need a seatbelt when the car is stationary, but when on the move, strap up. If your divorce is heading towards a disagreement that could dissolve your mediation process and lead to an emotional and financial crash into court, then why not bring in an Arbitrator and let the journey continue in safety?
The couple can still derail the process and let things get nasty, but if they have taken the trouble to belt up and pay attention to the road ahead, gathering the information about the routes through divorce that they have available to them, chances are they will make better choices about the direction they are headed and the people they bring in to guide them.
You can read the first part of this article here
For more information regarding Family Arbitration, refer to the IFLA website: http://ifla.org.uk/.
Suzy Miller