How does it work?

Arbitrators are specialist lawyers who are qualified to make legally binding decisions without people needing to go to Court. This document is intended to help litigants in person to understand what the Arbitrator can and cannot do. 

If you have agreed to ask an Arbitrator to make a decision about a family related legal problem you will be asked to provide all the relevant papers in your possession, as well as a statement setting out your own account of the issues. This may be sufficient for the hearing but there may be further things needed which the Arbitrator will tell you about at a pre-hearing meeting. These are known as “directions” and help the case to run smoothly. 

Directions meetings are almost always conducted remotely and are fairly informal. The job of the Arbitrator is to find out what is needed for the hearing and to discuss with the participants how and when these things will be provided. As much as possible you are encouraged to agree the directions between yourselves. The Arbitrator will usually appoint one of you as the “lead” participant to be responsible for collecting together the relevant documents in one place (an electronic or paper file). This is called the trial bundle. Sometimes it might be necessary to have more than one directions hearing. 

Once the case is ready, it will be given a date, which will be agreed by everyone involved. The arbitration hearing will be in person and will take place in an arbitration room. No-one else but the participants, their legal representatives (if they have them) and the Arbitrator will be present. If witnesses are needed to give evidence, they will only be in the room whilst their evidence is given.

The hearing will be a bit more formal than the directions meeting because these are legal proceedings, but they will be nowhere near as intimidating as a court hearing. The tone is much more like a business meeting although there are some important points to bear in mind. In particular, the participants will take it in turns to speak unless the Arbitrator asks them something out of turn. The legal representatives will sometimes help each other out by finding missing page references or documents for example but that is the exception to the general rule.

An Arbitrator is authorised to accept sworn evidence so your recollections of the facts will be taken on oath or affirmation. If you want to swear upon a particular religious text you should let your Arbitrator know in advance, and they may ask you to bring the book with you. 

You will be asked to tell your story and the Arbitrator may ask you questions as you go along to make sure that they fully understand your case and so as to make sure that all of the key points are covered. 

You will then be asked questions by the other participant or their legal representative. This is called cross-examination and is the part of the case that people worry about the most. You have no need to be unduly anxious although it can be quite challenging. The purpose of cross-examination is not to try to make you look foolish and the Arbitrator won’t allow this to happen. It is to test out your recollections to see whether you are right about the facts, and it is so that the other person can put their side of the story. Often there is a good deal of agreement between the participants and the differences are quite small, although they may feel very important and require the Arbitrator to make a decision about them. This will be the same process for both of you.

If you need to ask the other person questions (cross-examine) it is best to ask straightforward and simple questions rather than make long speeches setting out your own case. So for example “when did you last make a job application and how did you get on?”, “why did you spend so much money on an expensive car?”, “what is the entry on page 94 of your bank account relating to a foreign transfer of money all about?” would be good questions. You will need to put your own case in general terms but not every dot and comma of it. So, you might say “Do you agree that I’ve always faithfully paid the agreed interim maintenance?” or “I used to spend every other evening helping to do the accounts in the family business didn’t I?  for example. Try and prepare questions in advance if you can.

If you need to call any witnesses to give oral evidence you mustn’t “lead” them when they are giving evidence (suggest answers to them). The Arbitrator will have given directions for them to signed a written statement beforehand and the presentation of that document will usually be enough, unless they tell you that there is a mistake in the statement or that something new has cropped up which they need to tell the hearing about, in which case you should ask them to make the correction or give the additional information. Witnesses will also be cross-examined as set out above.

At the end of the evidence you and the other person will each be asked to make closing statements.  This is your chance to say why you think you are right and the other side is wrong in the outcome you are seeking, but it is not the time to give more evidence. That will have all been completed. The Arbitrator may ask you questions as you go along but you will not be interrupted by the other participant.

The case will then be closed and the Arbitrator will go away to think about the decision and will provide it shortly thereafter. The law says that this must be in writing so you can’t ask for a final decision during the course of the hearing because the Arbitrator isn’t allowed to give it. The decision (called an “award” in financial cases and a “determination” when it is concerning children) will usually be released subject to editorial corrections. If you spot an obvious mistake such as a wrong date of birth, spelling mistake or a mathematical miscalculation then you should tell the Arbitrator straight away so it can be corrected, but they won’t be able to change the core decision. As well as pointing out obvious factual errors, participants can also say if they consider that the Arbitrator has not addressed a particular point adequately or at all, but they may not give further evidence.

The decision is then binding on the parties and will be implemented through the court system. It is possible to appeal an Arbitrator’s decision but this will mean going to Court. The Arbitrator’s decision has the same status as that of a District Judge so any appeal will go to the next level of a specialist, which is a Circuit Judge.

Once you have agreed to an arbitration, and signed the appropriate ARB1 form, the full terms and conditions of the Arbitrator’s engagement will be set out in the contract letter and should be read in addition to this leaflet.