This awareness-raising week aims to highlight the alternatives to court for separating couples and their families.
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#abetterway#ResolutionWeek and #familylaw
In 2012 the
Family Law Arbitrators
(IFLA) launched a scheme which provides for the
arbitration of financial disputes following relationship breakdown after
marriage or cohabitation. Arbitration is essentially private judging.
Why was this step taken?
Have you ever had to wait an unacceptably long time for a
final hearing and/or a judgment? Have you ever attended court to be told there
is not enough time for your case to be heard? Have you and/or your clients ever
found the court facilities and conference rooms to be wanting? Given the
transparency agenda, have you amended your standard terms to provide a warning
as to the possibility of publicity and does this cause any of your clients a
concern? Have you ever nearly settled a case, but were left with one intractable
issue which necessitated the complete Form E disclosure process to be worked
through, just for that one issue to be canvassed by the court?
It is not just in the family arena that the court system has
been found to be wanting.
makes a compelling argument for the need for personal injury
claims to be resolved by arbitration. The cases of
Mitchell v News Group Newspapers Limited [2013 EWCA Civ 1526
& Others v TH White & Others  EWCA Civ 906 have made the
civil litigator’s lot a miserable existence.
Serious consequences for family lawyers who do not comply with family
orders are on the agenda: see Munby P in
W (Strict Compliance With Court Orders)
 EWHC 22 (Fam).
The 'Overriding Objective' provisions in both the FPR and
CPR require individual cases to take their place, given the other resource demands
which are made on the court. Not so with arbitration, where the primary focus
is the 'fair resolution of disputes by an impartial tribunal without unnecessary
delay or expense' (s 1(a) of the Arbitration Act 1996). The arbitrated case does not
have to jostle for hearing time alongside 'quick applications', injunctions and
J v J  EWHC 3654 (Fam) Mostyn J noted at para : 'if parties wish to have a trial with
numerous bundles then it is open to them to enter into an arbitration agreement
which specifically allows for that'. Whilst this may have been something of a
tongue in cheek comment, it has a serious point: the additional requirements
being placed on lawyers in order to assist an already overburdened judiciary
are not necessary if the parties wish to adopt their own bespoke procedure in
Its background is helpfully explained by
. In short, the process rests on a contractual appointment of an
under the IFLA scheme), whose decision the parties agree in advance
shall be binding, subject only to any 'challenge' available under the Act, and
in a financial remedy case, final approval by the court. For the court’s likely approach in a
financial remedy case, see Munby P in
S (Financial Remedies: Arbitral Award)
 EWHC 7 (Fam),  1 FLR 1257, at para : 'It could only be in the rarest of cases that it would be appropriate for
the judge to do other than approve the order.'
Grounds of challenge are set out in the Act at sections 67
(lack of jurisdiction), 68 (serious irregularity) and 69 (appeal on a point of
law). Arbitration is not meant to darken the door of the court. However, the
arbitrator, whose appointment rests upon a contractual basis has no coercive
powers. Arbitration therefore takes
place in the shadow of the law and parties to an arbitration know that the
court can step in to support the process, in particular by granting a stay of
competing legal proceedings commenced in defiance of an agreement to arbitrate
the dispute (s.9), enforcement of the directions of the arbitrator, if required
(s 42) the granting of a witness summons for people to attend before an arbitrator
(s 43) and general injunctive relief (s 44).
Both the arbitrator (s 33) and the parties (s 40) have a
duty to promote the fair and expeditious resolution of the arbitration,
pursuant to s.1 of the Act. Sections 1, 33 and 40 are the triangulation points of the
Whilst in commercial law the choice of substantive law is
permitted (s 3), under the IFLA scheme this 'non-mandatory' section is
disapplied, as all applications, must be determined in accordance with the law
England and Wales.
Section 4 and Sch 1 to the Act set out which parts of the Act
are 'Mandatory'. Non-mandatory sections can be applied either by scheme rules
and/or parties to suit their preferences. The
IFLA rules set out a sensible scheme as to how the Act
can work in the family context. The
website has published an annotated copy of these rules, in
the style of the Red Book commentary.
Judicial support for
The judges have been very supportive of the idea of family arbitration and this
scheme, See, for example:
Lykiardopulo v Lykiardopulo  EWCA Civ 1315,  1 FLR 1427 per Thorpe LJ at para  'is generally to be welcomed', AI v MT (Alternative Dispute Resolution)  EWHC 100 (Fam),  2 FLR 371 per Baker J
(paras  –  approving generally), and
W v M (TOLATA Proceedings; Anonymity)  EWHC 1679,  1 FLR 1513 (Fam) per
Mostyn J 'much-to-be-welcomed scheme promoted by the
Institute of Family Law
Sir James Munby P stated in
S v S (Financial Remedies: Arbitral Award)  EWHC 7 (Fam),  1 FLR 1257 that an agreement to arbitrate under the IFLA scheme should be
'a single magnetic factor of determinative importance' (paras  – ) and 'There
is no conceptual difference between the parties making an agreement and
agreeing to give an arbitrator the power to make the decision for them' and an
arbitral award was of its nature 'even stronger than a simple agreement between
the parties'.(para )
The Jackson ADR Handbook
cites the launch of the IFLA scheme under its 'Key Recent Developments' (page
The Law Commission
The Law Commission in its recent report on Matrimonial Property, Needs and Agreements, whilst declining to propose that arbitral
agreements should be considered to be Qualifying Nuptial Agreements, did state
[7.40]: 'The advantages of arbitration
over court proceedings are privacy and the ability of the parties to control
the proceedings by deciding what the arbitrator is to adjudicate upon.' The
paper submitted to the Law Commission by IFLA, which also explains the workings
of the scheme and relevant case law in detail, can be accessed here.
and online guides
To date the most comprehensive (per Baker J in AI ‘eloquent’) explanation of the scheme
and relevant case law has been written
Peter Singer. Sir
Hugh Bennet has also persuasively described the advantages of the scheme.
There are a number of very useful practical guides which are
There are many other helpful materials out there, not all of
which can be highlighted here.
How do I select an
You can find a register of all qualified arbitrators on the IFLA website. Parties may choose their
own arbitrator to suit their particular dispute. If the parties, or their legal
representatives, are unable to agree upon the identity of an arbitrator, IFLA
will select one or select one from a shortlist.
Two developments on the horizon.
At the helm of the first is Alex Verdan QC and Deborah Eaton
QC, in describing the resolution of a privatechildren dispute by way of 'Early Neutral Evaluation'. Alex told the Resolution
DR Conference 2014 that the parties agreed to appoint a private evaluator,
having despaired of not getting on at the Central Family Court. The central
idea is that the parties appoint a third party neutral evaluator by way of direction
from the court, agreeing in advance that the decision will be binding upon
them. The evaluator can hear the case and give a reasoned judgment which must
then be returned to court for approval and conversion into an order of the court.
This process sounds more closely related
to arbitration than it does to 'early neutral evaluation' which is more
commonly associated with a 'view' being provided after a review of the papers,
not after the hearing of evidence. Either way, the development breaks new
ground. Presently the IFLA scheme rules state that the resolution of private
children decisions is beyond the scope of the scheme. However, with the
Verdan/Eaton innovation, surely it is a matter of time before IFLA amends its
scheme to provide for some private welfare disputes to be resolved in this way?
At the helm of the second is Felicity Shedden who is an
exponent of a process called Med-Arb.
This allows parties 'stuck' in mediation to move seamlessly into arbitration. The idea of having a single mediator and
arbitrator in both roles can be controversial in England
However, in Canada
for example, the experience has been that parties appreciate the benefits of
one streamlined process. Presently, a
process which enables the parties to know with confidence that if they cannot
resolve their dispute with 'mediator A' then they will move straight into a
binding arbitral process with 'arbitrator B' may be of real interest to those
who use mediation or who have mediation based practices.