Arbitration is a direct alternative to going to court. Family Law Arbitrators in Scotland are all accredited specialist family lawyers or experienced family advocates. They have been trained to decide family law issues and are members of the Family Law Arbitration Group Scotland. Their decisions are as binding on parties as that of a court.
Arbitration offers the speedy resolution to family law issues of all sorts with the exception of divorce itself. An arbitrator can decide on issues of where a child should reside or how much contact a parent has with their child. They can decide on specific issues, such as relocation of a parent a child to another country, or the division of matrimonial property or ongoing financial support. An arbitrator's decision has the same force and effect as a court decree with limited grounds of appeal.
The following are some of our most frequently asked questions when it comes to arbitration.
Family Law Arbitrators in Scotland are accredited by the Law Society of Scotland as specialists in family law or are experienced family law advocates who have undergone specialist arbitration training organised by the Family Law Arbitration Group Scotland (FLAGS). Like a Sheriff or a Judge, the arbitrator decides a case on the basis of the evidence presented by the parties or their solicitors. Proceedings can be quite formal with evidence being given on oath but there is also scope for less formal arrangements, particularly when an arbitrator is being asked to decide on a single issue.
Unlike the court, arbitration is a private process. The public have no right of access and proceedings are not reported. This can be important, particularly if public figures are involved. Frequently, parties are able to reach agreement through negotiation on the vast majority of issues following a separation and the matters remaining in dispute, although legally quite complex, may be reasonably easy to put forward as an argument. A court may be unable to make a determination without the parties embarking on a defended divorce action whereas an arbitrator can decide on only the issue in dispute, with the decision then being binding on the parties.
Arbitration is a much speedier process than going to court. The parties choose who they wish to appoint as arbitrator and determine the timescale for the process. Depending on the complexity of the issues involved, the arbitration may be completed within a few weeks and even complex arbitration should not take more than a few months to be completed.
On agreeing to go to arbitration, the parties’ solicitors agree the Family Law Arbitration Group Scotland (FLAGS) arbitrator to be appointed. The parties in conjunction with their solicitors and the arbitrator agree the terms of the Arbitration Agreement that is then signed by the parties. The agreement sets out what the issues to be arbitrated upon are and how the arbitration is to proceed. In some cases there will be written submissions on the legal issues involved. In others there will be evidence led with parties and witnesses being subjected to cross examination as in a court. Once the arbitrator has heard all the evidence and submissions, they will issue their decision, which will then be enforceable in law.
There is limited scope for an appeal to the Court of Session of an arbitrator's decision on a point of law. Otherwise, the arbitration decision is final. It is unlikely that you would go to court.
Our highly experienced Solicitors can advise you on arbitration and other alternative resolution methods. They will explain clearly how each of the options operate, answer any questions you may have and advise you on the approach most suitable for your particular circumstances.
Call us on 03330 430 150 for a chat or contact us to book an appointment.
The cost of arbitration will vary according to the extent of the issues involved. The broader the issues, the greater the likely cost. The parties will enter into an Arbitration Agreement that will determine how the costs will be met. This could mean that the arbitrator will decide who should be responsible for the cost of the arbitration or it could be that the parties will agree to share the cost, either equally or in some other proportion. Generally, each party will be responsible for their own Solicitor’s fees and will share the arbitrator’s fee in the first instance.
We are always clear to clients about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails and phone calls. Depending on your case and circumstances, you may also need to cover outlays, such as payments to independent experts. We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses.
Please note we do not offer Legal Aid for this service.
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