Alternative Dispute Resolution / Private FDR / Arbitration

Alternative Dispute Resolution has been rapidly growing in the past few years. The delays in the Court system have meant that many Judges and indeed Lawyers are now encouraging their clients to consider alternative forms of Dispute Resolution, which involves encouraging parties to try and settle disputes outside of Court.

Chambers has strength and depth in the field of ADR. Our Barristers include accredited arbitrators, adjudicators and mediators. Many more of our members represent parties in arbitration, early neutral evaluation, mediation, and adjudication.

We believe that ADR has many benefits from a client perspective: it allows disputes to be settled more speedily; it avoids the costs and stress of protracted legal proceedings; it allows the parties to agree terms that are often far more flexible or beyond those available to the court. Just as importantly it allows the parties to see their position differently and may allow the parties to maintain or resurrect their commercial or personal relationships.

Chambers is well set up to accommodate a wide range of ADR, whether taking place in person at our bases in Chichester or Southampton, or remotely.

 

Arbitration

Arbitration clauses are routinely contained in commercial and property contracts and are governed by the Arbitration Act 1996. However, there is a growing trend for parties to agree to arbitration even though the contract does not expressly oblige them to.

Arbitration often proves an attractive proposition as it allows the parties to settle their dispute confidentially through an independent third party, which is often preferable to going to court.

We represent parties in arbitration proceedings in a variety of disputes including family law, construction disputes, contractual disputes, partnership disputes, and also act in relation to ancillary matters in the courts, such as the enforcement or stay of arbitration awards.

Family Law Arbitration

Arbitration is a means by which Family Law disputes can be determined by a fully trained Arbitrator. Arbitration is increasingly being used to determine arrangements in Family Law proceedings.

At the outset, the parties agree the identity of the Arbitrator and the nature and scope of the dispute to be decided. The parties and Arbitrator then consider whether the hearing will be dealt with by way of an oral hearing, on paper only, or, in appropriate cases, a combination of oral/paper hearing.

Arbitration can be used to determine contested matters in both Children Act and Financial Remedies cases. It can be used to resolve discreet issues, such as the terms of a letter of instruction to an expert or who should pay the costs of an expert report, to much wider issues such as with whom a child should live and how the matrimonial assets are to be divided between the parties.

One significant advantage of Arbitration is that it is generally possible to obtain a hearing much more rapidly than waiting for a Court hearing. Given the significant pressures on the Family Court, if a hearing is adjourned, it is not uncommon for the re-listed hearing to take place many months later. If a case is fully prepared, Arbitration could take place swiftly, potentially in a matter of days. This reduces the emotional and financial impact of having to wait many more months for a decision.

Another significant benefit is that the parties can be fully involved in selecting a date/time which is convenient to them for the arbitration to take place. Our Arbitrators within Chambers are happy to accommodate in person hearings or remote hearings if preferred.

The Arbitration will take place pursuant to the Arbitration Act 1996. Recent case law (Haley v Haley [2020] EWCA Civ 1369) has confirmed that contested awards are subject to the same test as decisions made within Court proceedings, i.e. the decision will not be overturned unless it can be shown to be “wrong”. This gives parties the security of knowing that the decision made in an Arbitration will be regarded by the Courts in the same way as if it were the decision of the Court.

The Arbitrator must have a minimum of 10 years’ post qualification practising in Family Law and will have completed a programme of training and assessment by the Chartered Institute of Arbitrators. Clients can therefore be assured that the Arbitrator will have a high level of knowledge and be highly skilled in the area they are Arbitrating.

If you have any questions about Arbitration, or are considering whether Arbitration may be a suitable means of resolution in your case, please do not hesitate to contact Alister Williams, our Senior Clerk, to discuss further.

Early Neutral Evaluation

Issuing proceedings should always be seen as a step of last resort. Often parties are at odds as to the law or other material facts affecting their dispute. In an early neutral evaluation an independent third party with specialist knowledge is invited to give a non-binding indication of the strength of the parties’ respective positions before the point of issue. This often serves as a sense check and can allow more constructive negotiations to take place.

This process is becoming increasingly common and facilitates settlement at an early stage.

Our members are experts in their chosen fields and are able to undertake early neutral evaluation on discreet points or whole disputes where appropriate.

Mediation

Mediation is perhaps the most common form of ADR. A mediator is an independent party who attempts to find common ground between the parties in an effort to facilitate settlement. A mediator does not decide the case and the parties are free to walk away from the negotiations at any stage. However, a successful mediation allows parties to settle their dispute often on confidential and contractually binding terms. It offers greater flexibility than is available to the courts, and helps the parties to avoid the costs and stress of protracted litigation.

Chambers has strength and depth in this field, with our members including accredited mediators who have experience of both private and commercial disputes. Members are also frequently instructed to prepare position statements and other documents and attend mediations on their client’s behalf.

Our barristers act as mediators also represent parties at mediation.

Adjudication

Adjudication is used in many construction disputes and offers a relatively informal, expeditious and cost effective method of resolving disputes. The decision of an adjudicator is binding unless the same dispute is subsequently litigated or arbitrated. Decisions are quick; they are normally reached within 28 days of referral to the adjudicator. This quick process allows prompt resolutions to be obtained but also requires highly organised and skilful preparation as documents need to be produced, particularly by the Responding Party, at very short notice.

Our members include accredited adjudicators whilst are members frequently advise on and settle the requisite documentation in adjudication.