Financial Arbitration

Below is a guide to Family Finance Arbitrations for clients wishing to instruct Jane Peckham. If you require further help or information, please contact one of the Practice Managers at 1 Crown Office Row, Brighton.

• If you are involved in a family dispute and are considering arbitration under the Institute of Family Law Arbitrators (IFLA) financial and / or children schemes, first check that the dispute is covered by the relevant scheme (see Article 2 of the IFLA Financial Arbitration Rules .
• To start the arbitration process, you each complete and sign a Form ARB1FS(application for financial arbitration), requesting the appointment of an arbitrator.

In the form you can name the arbitrator that you would like to instruct. You then will submit the form to the IFLA administrator, preferably by email to info@ifla.org.uk, or by post to IFLA, 91-95 Southwark Bridge Road, London SE1 0AX. The IFLA may also be contacted by telephone on 020 3841 0300.

Before sending the ARB1 to IFLA, it is perfectly permissible for you to contact the proposed arbitrator, on a joint basis, to ascertain his or her willingness to accept the instruction, and their availability. On receipt of the ARB1, the IFLA will then contact the named or selected arbitrator and invite him or her to become the appointed arbitrator.

• The arbitrator or his or her Practice Manager will then contact the parties seeking their agreement to the terms of the appointment. Please note that all correspondence between the arbitrator and one party must be copied to the other party. Correspondence by email is always encouraged.
• Many arbitrators will offer a free of charge ‘no commitment’ meeting before the terms are signed. This meeting gives you the opportunity to meet the arbitrator, and enables the arbitrator to be satisfied that you understand the process and your own obligations under the arbitration agreement.
• Once you and the arbitrator agree terms, the arbitration formally commences. The Financial Arbitration Rules and the Arbitration Act 1996 apply to the conduct of the arbitration.
• In the ARB1 you both agree to be bound by the arbitrator’s decision (called an ‘award’ in financial disputes.
• You also agree that you will not, while the arbitration is continuing, apply to court except in connection with the arbitration or to seek relief that is not available in the arbitration.
• A key feature of arbitration is that the parties ‘own’ the process as much as possible. In some cases, especially those where the issues are narrow, the parties will have no difficulty in agreeing on a form of procedure prior to the arbitrator’s appointment. They can, for instance, decide whether they want the dispute to be determined on paper only, or following a hearing, and in the latter case whether with or without oral evidence. However, in many cases, particularly where the parties and /or their advisers are unfamiliar with the arbitration process, they may prefer to leave procedural issues to be decided by the arbitrator, in the light of their representations.

• The procedure that is best for your arbitration will depend very much on the nature of your dispute. These may be adapted to suit the circumstances of your case, or an entirely bespoke procedure may be adopted. The arbitrator has the widest possible discretion to adopt procedures to suit the circumstances of your case. Their focus will be to manage the arbitration as quickly, efficiently and in the most cost-effective way as possible.
• Unless you have decided in advance which procedure will apply, the arbitrator will conduct a case management conference at the start of the arbitration, either by phone or in person, when procedural issues can be discussed and he or she will make a decision.
• It is open to the arbitrator to decline to accept the appointment if he or she considers that the arbitration is unlikely to be effective using the procedure that the parties have chosen.
• During the course of the arbitration, any further decisions about procedure will be taken by the arbitrator after due consultation with the parties. If appropriate, this may be done by means of a conference call or by email.
• If there is to be a final hearing it will take place at a date, time and venue agreed between you and the arbitrator.
• The arbitrator’s award must be committed to writing and delivered promptly. The decision will include written reasons, like a court judgment, and will deal with costs. The arbitrator’s fee must be settled upon delivery of the award.
• There may be an avenue of appeal to court on a point of law, unless the parties have agreed to exclude this right. The parties can also invite the court to set aside the decision if there has been a serious irregularity which has resulted or may result in substantial injustice.
• In financial remedy-type, the ARB1 requires you if necessary to apply to court for a consent order reflecting the award or determination. Once a court order has been made it may be enforced in the usual way.
• If the arbitration involves a purely civil claim (e.g. under TOLATA 1996) you can apply to a court for permission to enforce the award as though it were a court judgment or order, under section 66 of the Arbitration Act 1996.
• In certain circumstances the arbitrator may terminate the arbitration before it has been concluded.
• The arbitration process and the arbitrator’s decision are entirely confidential, and disclosure is permitted only in prescribed circumstances. Media representatives are not admitted to any hearings.