My Solicitor Is Suggesting Arbitration Instead of Going to Court – What Should I Do?

If your solicitor has suggested arbitration instead of going to court, it is completely understandable to pause and ask whether it is really the right step.

For many people going through divorce or financial remedy proceedings, arbitration can offer a faster, more private and more focused way of resolving a dispute. It can also help avoid some of the cost, delay and uncertainty that often come with court proceedings.

However, arbitration is not suitable for every case. Before agreeing, it is important to understand what arbitration involves, what powers an arbitrator has, and whether court involvement may still be needed first – particularly where the financial issues involve business interests, trusts, inherited wealth, property portfolios, maintenance, or concerns about hidden or transferred assets.

What is family arbitration?

Family arbitration is a private dispute resolution process where separating spouses or former partners appoint an independent arbitrator to decide an issue between them.

In divorce and financial remedy cases, arbitration can be used where the parties have not been able to reach agreement but want a binding decision without going through the full court process.

The arbitrator acts in a decision-making role. This makes arbitration different from mediation. A mediator helps the parties try to reach an agreement, whereas an arbitrator hears the dispute and makes a decision.

Arbitration can be used to resolve a whole financial settlement dispute or a specific issue within wider financial remedy proceedings, such as property, maintenance, expert evidence, disclosure or how a particular asset should be treated.

In the right case, family law arbitration can give both parties a more focused and controlled route to a binding decision.

Why might my solicitor suggest arbitration?

Your solicitor may suggest arbitration because the court route can be slow, expensive and uncertain.

Court delays are one reason some clients are advised to consider alternative routes. We cover this in more detail in our guide to family court delays and ADR in divorce financial cases.

Financial remedy proceedings often involve several stages, including financial disclosure, questionnaires, expert evidence, negotiation, a Financial Dispute Resolution hearing, and potentially a final hearing. Each stage requires preparation, solicitor time and, in many cases, barrister involvement.

Arbitration may be suggested to narrow the issues, where both parties want a specialist decision-maker, the court timetable is likely to cause delay, or the cost of repeated hearings is becoming disproportionate.

This does not mean arbitration is automatically the right route. It means the option deserves careful consideration in light of the disclosure, the assets involved and the behaviour of both parties.

Arbitration versus court proceedings

Court proceedings follow a formal timetable. Once financial remedy proceedings are issued, the parties must comply with court directions, and further formal documents may be required even where some disclosure has already taken place voluntarily.

For example, even where financial information has already been exchanged, the court process may still require further formal disclosure steps depending on the stage and circumstances of the case.

The court process can be effective where strong powers are needed, but it can also be slow and costly where multiple hearings, delays or adjournments are involved.

Arbitration gives the parties more control over the timetable, the arbitrator and the issues to be decided. It can also be used to resolve one specific financial issue rather than the whole case, which may be useful where the parties are close to agreement but need a binding decision on a sticking point.

What are the main advantages of arbitration?

Arbitration can have several advantages in divorce and financial settlement disputes.

The parties choose the arbitrator

In court, the parties do not choose the judge. In arbitration, the parties will agree on an arbitrator with relevant family finance experience, which may be especially helpful where the dispute involves business assets, trusts, pensions, inherited wealth or property portfolios.

The arbitrator should be focused on your case

At court, judges often have several matters listed on the same day. An arbitrator is appointed to deal with the arbitration and will have time to read the papers, understand the issues and prepare properly.

Arbitration can be faster and more flexible

Arbitration will be arranged around the parties, their legal representatives and the arbitrator. It can also be shaped around the issues that actually need to be decided, rather than always following the full court process.

It is more private

Arbitration offers greater discretion, which may be valuable where the case involves high-value assets, business interests, professional reputation or sensitive family wealth.

Arbitration will often take place in a more private professional setting, such as barristers’ chambers or another agreed venue, rather than a traditional courtroom.

It may reduce overall cost

Although the parties have to pay the arbitrator’s fees, arbitration may still be less expensive overall if it avoids repeated court hearings, long delays, unnecessary preparation or adjournments.

Are there any disadvantages or risks with arbitration?

Yes. Arbitration can be very useful, but it needs to be considered carefully.

The main disadvantages are:

• The parties usually have to pay the arbitrator’s fees, often shared between them.
• Both parties normally need to agree to arbitrate.
• Arbitration may not be suitable if one party is refusing to disclose information properly.
• Court involvement may still be needed for third-party orders, injunctions or freezing orders.
• The arbitrator’s award will usually still need to be submitted to the court for approval and sealing.

There is a risk in agreeing to arbitration too early, before the financial picture is clear enough. If there are serious concerns about hidden assets, transferred property, incomplete disclosure or third-party involvement, it may be necessary to take other steps first.

If this is one of your concerns, our guide on what to do if you suspect your spouse is hiding assets in divorce explains the issue in more detail.

For example, where one spouse is suspected of moving assets out of reach, Melanie may advise on asset tracing in divorce, freezing orders and injunctions, or other court-based protective measures before arbitration is considered.

Do arbitrators have the same powers as judges?

Not in every respect.

An arbitrator can give directions to move the case towards a final decision. This may include directions about disclosure, expert evidence, witness evidence, timetabling and the format of the hearing.

However, an arbitrator does not have all of the powers of a judge.

For example, an arbitrator cannot compel third parties to provide documents in the same way the court can.

An arbitrator cannot generally make orders that directly bind third parties in the same way the court can, and court involvement may be needed where injunctions, freezing orders or third-party disclosure orders are required.

This can matter where:

• A spouse has transferred assets to another person
• A company, accountant, solicitor or business associate holds relevant documents
• A property or other valuable asset is held in someone else’s name
• A trust or company structure needs investigation
• There are concerns about assets being moved or dissipated
• A third party needs to be compelled to produce evidence

This does not mean arbitration cannot be used at all. It may mean the case needs careful sequencing. The court may be needed first to obtain disclosure, preserve assets or resolve a third-party issue before arbitration can safely determine the remaining financial dispute.

These issues can be particularly important in cases involving suspected undisclosed property or hidden assets, as shown in this anonymised hidden assets and undisclosed property divorce case study.

Is the arbitrator’s award binding?

Yes. In family arbitration, the arbitrator’s decision is intended to be binding.

In financial cases, the decision is usually called an award. Once the arbitrator has made the award, it will usually be submitted to the court for approval and converted into a sealed court order. This step is important because it allows the terms to be formally enforced if one party does not comply.

There are limited circumstances in which an arbitral award may be challenged, but arbitration should not be treated as a trial run or informal opinion. If you agree to arbitration, you should do so on the basis that the outcome is expected to be binding.

Who pays for arbitration?

The arbitrator’s fees are usually shared equally between the parties, unless a different arrangement is agreed or ordered.

This can make clients hesitate, because there is no separate judge’s fee in court proceedings. However, court proceedings can involve repeated solicitor and barrister preparation, multiple hearings, long waiting periods and extra correspondence. If arbitration resolves the dispute more quickly or with fewer procedural steps, the total cost is likely to be lower.

You may also find it helpful to read our guide on how to keep divorce legal costs down.

The better question is not only whether arbitration has a fee, but whether it is likely to resolve the dispute properly, proportionately and without avoidable delay.

When might court still be the better route?

Court may still be the better route where stronger powers are needed, or where one party is using delay, non-disclosure or obstruction as a tactic.

This may include cases involving hidden or transferred assets, freezing orders, third-party disclosure, serious enforcement concerns, complex company or trust structures, or a spouse who will not agree to arbitration.

In those situations, arbitration may still become useful later, but it may not be the right first step. This is why early strategic advice matters in divorce and financial settlement cases. The route you choose can affect cost, pressure, disclosure, timing and leverage.

Should I agree to arbitration?

Before agreeing to arbitration, it is worth considering:

• Whether the whole financial settlement is unresolved, or only one or two issues need to be decided.
• Whether there has been proper financial disclosure.
• Whether there are concerns about hidden, transferred or undervalued assets.
• Whether privacy, speed and control over the timetable are important.
• Whether both parties are likely to engage properly with the process.
• Whether the case is financially complex enough to benefit from a specialist arbitrator.
• Whether any court powers are needed before arbitration can safely take place.

Arbitration may be particularly useful where the issues have narrowed and both parties need a binding decision. It may be less suitable where disclosure is incomplete, the other party is obstructive, or urgent protective steps are still needed.

Arbitration is a strategic decision, not just a cost decision

Arbitration can be a highly effective alternative to court in the right financial remedy case, but the decision should not be based on speed or cost alone.

The more important question is whether arbitration is right at this particular stage. In some cases, it may avoid a long and expensive court process. In others, court involvement may be needed first to protect assets, obtain disclosure or deal with a party who is not engaging properly.

How Melanie Townsend can help

Melanie Townsend advises clients on complex divorce and financial remedy matters, including cases involving business interests, trusts, inherited wealth, property portfolios, maintenance, hidden assets and high-value financial structures.

She can advise whether arbitration is suitable for your case, whether further disclosure or protective steps are needed first, and how arbitration fits into the wider strategy for resolving your financial dispute.

Melanie’s approach is particularly suited to clients who need careful judgement, direct senior involvement and a realistic assessment of the best route forward. In some cases, that may mean negotiation. In others, it may mean arbitration. Where necessary, it may mean court proceedings.

The aim is always to choose the route that best protects your position, controls unnecessary cost where possible, and moves the case towards a fair and workable outcome.

If you need advice about arbitration, court proceedings or the right route for resolving a financial dispute, contact Melanie Townsend in confidence.

Frequently asked questions about arbitration instead of court

If arbitration has been suggested in your divorce or financial settlement case, these are some of the most common questions to consider before agreeing.

Is arbitration better than going to court?

Arbitration can be better than court in some cases, particularly where both parties want privacy, speed, flexibility and a specialist decision-maker. However, court may still be better where urgent orders, third-party disclosure, asset protection or stronger enforcement powers are needed.

Is family arbitration legally binding?

Yes. The arbitrator’s award is intended to be binding. In financial cases, the award will usually be submitted to the court so it can be approved and converted into a court order.

Can arbitration be used for divorce financial settlements?

Yes. Arbitration can be used in financial remedy cases to decide issues such as property, capital, maintenance, pensions, business interests or specific points within a wider financial settlement dispute.

Who chooses the arbitrator?

The parties need to agree to jointly instruct an arbitrator , often with advice from their solicitors. This can be an advantage where the case requires specialist financial remedy experience.

Who pays for family arbitration?

The arbitrator’s fees are usually shared between the parties. Although this is an additional cost, arbitration may still be more cost-effective overall if it avoids repeated hearings, delay and unnecessary court preparation.

Can an arbitrator order financial disclosure?

An arbitrator can usually give directions about disclosure between the parties. However, if documents are needed from third parties, or if stronger court powers are required, court involvement may still be necessary.

Should I agree to arbitration if my spouse has hidden assets?

Not without careful legal advice. Arbitration may still be useful later, but if there are serious concerns about hidden or transferred assets, it may be necessary to take court-based steps first, including disclosure applications, asset tracing or freezing orders.