Arbitration or Court?

Justine Soper

May 2021

Even before Covid-19 changed all our lives, the Family Court had been creaking under the weight of cases before it, with Judges and Court staff having significant caseloads; whilst practitioners and clients frequently experienced weeks and months of delays for hearings and papers to be received.

Even before Covid-19 changed all our lives, the Family Court had been creaking under the weight of cases before it, with Judges and Court staff having significant caseloads; whilst practitioners and clients frequently experienced weeks and months of delays for hearings and papers to be received.


For a few years now, Arbitration has been available within Family Law matters; through the Arbitration Scheme  overseen  by  the  Institute of Family Law Arbitrators – or IFLA (www.ifla.org.uk). Both financial and children matters can be dealt with in this way.  Disputes regarding children are those called “private law” children cases i.e. disputes between family members; rather than “public law” where Social Services are involved.


Arbitration though has been a bit of a “slow  burner”  within  the  profession.  I became an Arbitrator seven years ago and have long advised my clients on the process when discussing dispute resolution options with them.  Fellow Family Law colleagues have not generally done the same however, and frequently, if I have suggested it as a way forward in a matter, I have been told it would not be acceptable as, if it were needed, an appeal on an Arbitrator’s decision would be more difficult than appealing a Family Court Judge’s decision.


That has now all changed!  In a case heard by the Court of Appeal in October 2020, the Court ruled

that the same appeals process applied to Arbitration as it does to the Family Court.  This should hopefully mean clients and Family Lawyers alike will be far more willing to enter into Arbitration.


There are various advantages to this process over the Court.  Time and costs are probably the most significant ones.  For a lot of financial cases with relatively straightforward family finances – i.e. a house, pension(s), maybe a little invested, one or both spouses working and dependent children – it is likely the whole matter could be dealt with within 4 or 5 months of instructing an Arbitrator.  The Court is a minimum of a year.


It is not a cheap option.  Legal fees would still be a few thousand pounds and a fee is paid (jointly by the couple) to instruct the Arbitrator but it is usually a lot less than Court, in part because of the quicker time frame.


Also, your Arbitrator is dedicated to your matter.  At Court you will probably have a different Judge at each hearing and the reality of the Judges’ workload at Court is that they often have only summarily read case papers and have a very full list of cases each day.  An Arbitrator would be thoroughly prepared and allowed sufficient time to deal with your case.


Arbitration is not the province of the wealthy; indeed the President of the Family Division has commended the Scheme and highlighted it is an excellent route for the “everyday” cases that most Family Lawyers and Courts are dealing with on a regular basis.


If you would like any more information, please do get in touch with me.