What Is Arbitration?

Arbitration is a form of Alternative Dispute Resolution (ADR).   It is a legal process for the resolution of disputes outwith a court context.  The parties to a dispute refer to one or more persons (the arbitrator) by whose decision (the award) they agree to be bound.

What Family Law Issues Are Suitable for Arbitration?

Arbitration will be most helpful in cases where there is an issue of principle between clients which demands a determination and which might accordingly not seem to be particularly suitable for collaboration or mediation.  Specific examples of issues which may be suitable are:

  • What is the relevant date?
  • How much aliment should be payable?
  • Resolution of specific issues re the care of children, including schooling and medical treatment
  • What are the matrimonial assets worth?
  • What account should be taken of special circumstances or Section 9 arguments?

What Are the Advantages of Arbitration?

  • The ability to choose a decision maker with relevant expertise
  • The process is quicker, more flexible and can be tailored towards a focused resolution of the particular issue raised. This may result in a saving of legal costs
  • There is greater scope for confidentiality

What Does the Process Involve?

  • The parties, assisted by their advisors, and with input from the arbitrator, if necessary, complete the Agreement to Arbitrate which sets out the scope of the arbitration.
  • A Case Management meeting takes place and parties and the arbitrator agree on the process – should the arbitration be based solely on written submissions or is a hearing required?  What information is needed to resolve the issue? Is oral evidence necessary?  Should submissions on legal issues be written or oral or both?
  • A timetable is identified and an award will be issued shortly after the final hearing

What Information Will Be Given to the Arbitrator?

This will depend on the nature of the issue and the scope of the Agreement to Arbitrate. A Case Management meeting (or meetings) will take place where parties, agents and the arbitrator will agree on the documentation required, the timetable for production of the documents and will explore issues such as whether a joint expert can be instructed and if so what the remit should be.

What Is the Solicitor’s Role in Arbitration?

The solicitor’s role in guiding their client through the arbitration process is not dissimilar to the role adopted in advising a client through the litigation process.  They will assist clients in focusing of the issues, in identifying the information that requires to be produced, in formatting that information and in making submissions, whether oral or written.  In some arbitrations witnesses will be led and cross examined and the nature of the issue will determine whether that is helpful or necessary.

Where Can I Find an Arbitrator?

View the full list of FLAGS members here.

Is Arbitration Binding?

On entering into the Agreement to Arbitrate the parties agree to be bound by the Arbitrator's determination. While only a court can grant decree of divorce, the Arbitrator can make binding awards of financial provision. The Arbitrator may also make such further orders and declaratory judgments as are set out in the FLAGS rules and the Agreement to Arbitrate.

  • Alison Edmondson
  • Lynda Brabender KC
  • Alastair Milne
  • Fiona Rasmusen
  • Alasdair Docwra
  • Scott Cochrane
  • Jennifer Maciver
  • Martin F Monaghan
  • Marion McDonald
  • Siobhán Kelly
  • John Macpherson
  • Shona Templeton
  • Robert Gilmour
  • Desmond Cheyne
  • Shona Smith