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Has anyone used ARBITRATION during divorce/financial settlement?

(7 Posts)
HappyDay5 Fri 24-Feb-17 11:14:25

Hi All, my solicitor has forwarded the latest letter from my ex's solicitor and they're asking me to consider arbitration if I don't agree with his proposal. My solicitor knows very little about this process as it's fairly new. She's told me there are very few arbitrators in the UK (most are retired judges and from my quick Google search seem to be fairly elderly white males). This has been suggested as an option to save on Court fees but no one can tell me how much this is likely to be (if I still pay for my solicitor or can I use a barrister during the process etc). It doesn't seem very tried and tested and I feel fairly reluctant given that his solicitor is one of the arbitrators from the group.

Does anyone have any experience of this during a divorce? Many thanks

Familylawsolicitor Fri 24-Feb-17 21:54:25

I've been involved in a couple now.
Think of it as a hearing in front of a private judge.
Your solicitor preps the case as she would for a court hearing.
You are represented in the arbitration by a barrister or solicitor as you would be for a hearing.
The arbitrator makes a decision. This is binding on you but there is a little bit of extra admin work after the decision to turn it into a court order but not much. It can be appealed the same way a court order can.
Expect to pay £3-£5k for the arbitrator shared between you so upfront costs are more than court (£255 court fee)

The benefit is tailoring the court process to you and the vastly accelerated procedure of going privately. At the moment it can take well over 12 months to get to a final hearing and you can't short circuit the court process so you may have several hearings before a decision. With arbitration you can skip to a final decision much quicker and tailor the process to suit you. Think of it as NHS vs private.

What stage are you at? If all disclosure is complete and you just want someone to decide for you arbitration might work

Private FDRs are another option if you have not already had one. This is a without prejudice negotiation hearing.

There are female arbitrators out there. Which area are you?

However family law arbitration is a small world and it sounds like your solicitor is not familiar with it at all. This may make you both feel at a disadvantage.

HappyDay5 Sat 25-Feb-17 17:31:30

Thanks for responding familylaw. We haven't reached any part of the process yet and certainly not full disclosure. I began to compile the information for Form E with my solicitor but this was on pause while we attempted to reach an agreement.

I offered a proposal via my solicitor which he turned down. He made a counter offer which I've turned down and arbitration was suggested by his solicitor last week.

I've never been privy to our household accounts as I was a victim of financial abuse. My ex is in quite a lot of debt and is attempting to class the debt as marital in order to use it as a bargaining chip (if we split the equity in half, he's offered to pay it all with his half). I said I would consider arbitration (rather than court) if he provides statements for all accounts during the final years of our marriage. I have no doubt he will refuse - this was my primary reason for leaving him and he was adamant then that he wouldn't give me access.

I know the historic data probably won't be used if we were to attend court (2011-2014) but I at least hope that arbitration might allow some disclosure of our marital finances so that any order made is fair. I'll list a few figures below just to outline the sums we're dealing with. I appreciate that to our solicitors, they are meagre sums and not worth going to court over. However, I see it differently and to me the money is critical to my chances of success when trying to rehouse myself and the children. Half of the equity may as well be none of the equity. The only house I can remotely afford is a new build (so I can take advantage of an equity loan) and I can just about manage it with the equity. The only alternative is to use the money on rent for a couple of years. As a single parent with a low part-time income, the letting agents I have approached have all requested in the region of 20 months of rent in advance (rent is approximately £800 per month in this region). I dread to think what might happen in the future if the rental house I am living in is sold. I may need to move again and once the money is spent, I won't have that kind of lump sum again.

Equity approx £50k
Loan to ex's parent (£15k of which I've paid off £3,500)
Credit card debt (in ex's name) £12k
New build property (after equity loan applied) £181k
My mortgage capability (max) £125k
My savings so far approx £4K (I've offered my ex a £5k cash payment if he agrees to settle)
Ex earns approx £50k pa
I earn approx £16k pa
We are both mid 40's.

We relocated hundreds of miles from family and friends and bought our house in his sole name. He now lives with his girlfriend and I remain in the marital home with our children 7 & 9 and pay £640 a month to him for house costs. He continues to pay me child maintenance which helps.

I am not in a position to be able to 'buy' our house as it's too expensive and I can't raise a mortgage large enough. My ex thinks it is fair that we each move into rented accommodation and that I should not have any expectation of owning a property. He's lived with his girlfriend for almost 2 years and according to my solicitor his housing needs are effectively met.

I'm reluctant to go to court as I know it may cost 10's of £1000's but I often feel I would rather leave the decision with the court and hope for a fair outcome. I'm really banking on my ex not wanting to go to court even more than I do. If we use arbitration I'm concerned that it may become more 'personal' and my ex will have the opportunity to 'charm' the arbitrator and present false information.

MrsBertBibby Sat 25-Feb-17 20:12:01

Arbitration sounds far too pricey for you, tbh. You'll have enough trouble paying your own lawyer without paying for a private judge on top.

HappyDay5 Sun 26-Feb-17 01:43:32

I don't fully understand where the savings are to be made? Is it purely because it's faster? Let's face it, the biggest cost is the legal representation - not the court fees - and I believe I will still require representation (perhaps albeit for a shorter time) even if I agree to arbitration?

RedastheRose Sun 26-Feb-17 01:58:20

I think it is more usual to go to mediation once full disclosure has been made and before you go the full court route or the arbitration route. Mediation isn't binding unless you come to an agreement and then what has been agreed gets drafted into a financial settlement that gets rubber stamped by the court. I think anyway!

HappyDay5 Sun 26-Feb-17 12:39:05

Sorry RedastheRose and FamilyLaw, I should have said that we entered the mediation process shortly after we separated almost 3 years ago and went through financial disclosure at that point. My ex initially refused and then postponed or cancelled all mediation appointments until he exceeded some sort of 'cut-off' point (1 year after separation) and all statements provided were then post-split. I'm unsure as to the significance of this but given that I had no control or input into our (his) finances while together, it's unlikely I will every know. All I do know is that he was a compulsive spender and went to great lengths to hide this from me. I was effectively a childminder and house-keeper who was to all intense and purposes, living with a single man.

The only agreement we could reach was one of child contact and after 4 sessions of attempting to reach a financial agreement, my ex demanded 'shuttle mediation'. After one session using this format, it became clear that we had reached an impasse and I've been trying every other approach since. This whole process would have been far easier had we purchased our home in joint names but given that that was never an option for me, it is what it is. I need to do what I can to find a way or securing a roof over the heads of our children - doing nothing isn't an option, not when he still has access and uses the house for his child contact.

I've read a few more articles on Arbitration written by Marilyn Stowe over the weekend and I have to say that I'm beginning to be persuaded. I've also researched a little about Private FDR hearings but without any knowledge of cost for either, deciding on how best to proceed is very difficult.

When will this ever end...

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