Costs Awards by the Arbitrator

We have covered on a separate page how we charge for our time in providing Arbitration.

The normal outcome is that a party will pay one half of our charges for the arbitration. Each party will pay for their own legal advice and/or representation. Each party will pay one half of any additional costs which might be incurred – for example: An Independent Social Worker, Room Hire.

The Arbitration Rules (the relevant section of which is reproduced below) do however allow the arbitrator to make costs awards.

These can include determining that one party should pay the costs – including legal costs – of the other party.

These costs awards will be enforceable through the court.

The normal position in court where there are proceedings about the arrangements for children is that each party will pay their own costs.

Costs awards in arbitration are uncommon, but, (just as in court) may well be made if there is misconduct by one of the parties during the process. For example not cooperating with deadlines/directions without good reason or failing to attend the hearing or misusing the process by pursuing irrelevant issues…

 Family Law Arbitration Children Scheme – Arbitration Rules 2016

Article 14 – Costs

14.1 In this Article any reference to costs is a reference to the costs of the arbitration as defined in section 59 (costs of the arbitration) including the fees and expenses of IFLA and the fees of any expert, unless otherwise stated.

14.2 The arbitrator may require the parties to pay his or her fees and expenses accrued during the course of the arbitration at such interim stages as may be agreed with the parties or, in the absence of agreement, at reasonable intervals.

14.3 The arbitrator may order either party to provide security for the arbitrator’s fees and expenses and the fees and expenses of IFLA.

14.4 Unless otherwise agreed by the parties, the arbitrator will make a determination allocating costs as between the parties in accordance with the following general principles:

(a) the parties will bear the arbitrator’s fees and expenses, the costs of any expert and the fees and expenses of IFLA in equal shares;

(b) there will be no order or determination requiring one party to pay the legal or other costs of another party.
These principles are subject to the arbitrator’s overriding discretion set out in Arts.14.5 and 14.6.

14.5 Where it is appropriate to do so because of the conduct of a party in relation to the arbitration (whether before or during it), the arbitrator may at any stage order that party:

(a) to bear a larger than equal share, and up to the full amount, of the arbitrator’s fees and expenses and the fees and expenses of IFLA;

(b) to pay the legal or other costs of another party;

and may make a determination accordingly.

14.6 In deciding whether, and if so, how to exercise the discretion set out in Art.14.5, the arbitrator will have regard to the following: 

(a) the principles applied by the courts in relation to cases concerning child welfare;

(b) any failure by a party to comply with these Rules or any order or directions which the arbitrator considers relevant;

(c) any open offer to settle made by a party;

(d) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(e) the manner in which a party has pursued or responded to a claim or a particular allegation or issue;

(f) any other aspect of a party’s conduct in relation to the arbitration which the arbitrator considers relevant;

(g) the financial effect on the parties of any costs order or determination.

14.7 Unless the parties agree otherwise, no offer to settle which is not an open offer to settle shall be admissible at any stage of the arbitration.

14.8 These rules as to costs will not apply to applications made to the court where costs fall to be determined by the court.