The Rise of Arbitration in Family Law

Arbitration within Family Law is increasingly becoming a popular alternative dispute resolution mechanism for financial and children disputes, with cases doubling between 2023 and 2025. Since 2024, parties accessing the family court system have been required to confirm whether they have used non-court dispute resolution methods and face cost penalties if not.

Arbitration can be used by married couples, civil partners and unmarried couples who are trying to navigate the complexities involved in a relationship breakdown. It can be used at any point during litigation whether before or after proceedings have begun. It can be used to deal with the whole case or just part of it, for instance where negotiations have stalled or the parties have made substantial progress in agreeing matters but are stuck on a particular issue.

It is a consensual process in that both parties have to agree to appoint an experienced legal professional, often a retired Judge or Senior Counsel or Solicitor, to adjudicate on the matters in dispute and that by entering the arbitration process, both parties are agreeing to be bound by the adjudicators decision, known as an “award” in financial proceedings and a “determination” in proceedings relating to children. The award or determination is then submitted to the court for endorsement and will become a formal and binding court order.

Whilst the arbitrator will charge for their services upfront, the fees are usually split equally between the parties and many arbitrators will offer a fixed fee for their services, typically between £3,500-£5,000 + VAT for a one-day hearing including preparatory work. Whilst this is not a cost parties will incur under traditional court proceedings, the benefits for parties of engaging with the arbitration process include the following:

1. Certainty in knowing that once an adjudication date is set, that hearing will go ahead and you will have a final outcome and that the hearing will not be cancelled due to the lack of judicial availability or court time on 24 hours or less notice leaving the parties with incurred solicitors and barristers fees. This is increasingly being seen within traditional court proceedings in both finance and children cases;
2. Confidence in knowing that the adjudicator has read all of the papers submitted and has the time to deal with your case as opposed to a court appointed Judge not having read any of the papers and having 3-6 other cases in the court list on the same day;
3. Specialization and Flexibility in that the arbitrator has been chosen by the parties based on the adjudicators experience of dealing with similar matters and that the hearing is taking place on a date and time and at a venue that is appropriate as opposed to the parties not knowing who their Judge will be at court until the day before the hearing and many courts not having sufficient private conference rooms to allow privacy and space for confidential discussions;
4. Fewer Hearings – arbitration typically requires only one hearing, with or without a preliminary hearing to determine the issues in dispute, if this cannot be done on paper, as opposed to multiple hearings in court. This reduces legal fees in terms of solicitors preparation and representation costs;
5. Speed – once arbitration is the agreed process, a timetable can be agreed between the parties in respect of financial disclosure or the preparation of witness statements and a hearing where a final determination will be made can be arranged within a matter of months according to the individual case’s timetable. In contrast under the court timetable, an initial hearing may take 3-6 months from the date the application is issued to be listed and a further 12 months or more could be incurred before a final hearing is listed in traditional court proceedings.

Arbitration is a process that can provide certainty and finality to family disputes in a swift and cost-effective manner.

Family arbitration in England and Wales is managed through the Institute of Family Law Arbitrators (IFLA) scheme which operates under set rules approved by the President of the Family Division.

Warners’ Family team benefits from the expertise of Partner Charles Tennant, a qualified arbitrator specialising in financial and child disputes. For more information, please contact our Family Law team on 01732 747900 or [email protected].

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.