Family Law

The Scheme

Judicial encouragement

• In W v M (TOLATA Proceedings) (Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513, Mr Justice Mostyn said: 'where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has become available in financial remedy proceedings by virtue of the much to be welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings privacy can now be guaranteed.'
• In T v T (Hemain Injunction) [2012] EWHC 3462 (Fam), [2014] 1 FLR 96, Nicholas Francis QC considered the validity of an arbitration clause in a pre-nuptial agreement which the wife argued she was not bound by. The Court held that the arbitration clause was valid as s 7 of the 1996 Arbitration Act allowed for the separability of the arbitration agreement. 
• In AI v MT [2013] EWHC 100 (Fam), [2013] 2 FLR 371, Baker J afforded the parties the opportunity to reconcile their differences in a process akin to arbitration before a Rabbi in New York and the auspices of the Beth Din. 
• In S v S (Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam), [2014] 1 FLR 1257, the President of the Family Division, Sir James Munby provided the strongest judicial support for the use of family arbitration which paved the way for it to take centre stage in resolving breakdowns. He made it clear that in the absence of very compelling countervailing factors, arbitral awards will be capable of being the 'single magnetic factor of determinative importance'. It would only be in the rarest of cases that it would be appropriate for family Judges to do other than to approve the arbitral award. To quote the President, 'with a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case'. 
• In DB v DLJ [2016] EWHC 324 (Fam), Mostyn J considered the routes of challenge and appeal for family arbitral awards in the context of an application by husband for the wife to show cause why the arbitral award should not be made into a court order. He decided that the arbitral award was a 'thorough, conscientious and clear piece of work. Its quality is a testament to the merit of opting for arbitration'. 

• agreements to resolve issues would be addressed; 
• how stays of court proceedings would be managed;
• how the post-arbitral court order would be sought;
• reflecting on the guidance given to the judiciary in S v S as to the approaches to be taken:
  • to the agreed order and 
  • the application where one side seeks to resile from the arbitral determination.

The launch

Scope of the Children Scheme 

Benefits of arbitration

• The requirement of a MIAM;
• All the standard preliminary steps and stages, whether or not they are appropriate to your case;
• The hurdle of satisfying a judge that expert evidence is necessary;
• Waiting in line till the court slots are available;
• Clients having to fit their availability to the court-provided slots;
• The risk of going to court and finding your case ‘bumped’ by urgent business so that you only start your one day case at 2pm and have too little time to get through the evidence and issues; 
• The related problem of sitting around in inconvenient premises (that don’t promote dialogue and settlement) whilst waiting to hear if you will get on; 
• Having to present a case within the confines of a restrictive court bundle;
• Coming on before a Judge who does not really make children issues a major part of their work or who has particular views on the application that is being brought that stands in the way of the fair hearing (great if the judicial tendency helps you, but who wants to rely on that?);
• Finding that despite the best efforts of the judge to manage their over-stuffed list, you go 'part heard' and face the wait of months (and a further round of brief fees) before the issues can advance;
• The risk of the court refusing to make a determination of the issue that your clients have raised for a decision;
• The risk of media attention or a reported judgment;
• A significant risk of further delay, cost and uncertainty process whilst appeals are under-way.

• A creative process that the advisors and clients help design with the arbitrator to best meet the needs of ensuring a fair hearing of the issues;
• The possibility of a decision based on papers rather than the formality of a hearing (if that is what better suits the situation);
• The option of selecting a decision maker: rather than going to court and having a Judge imposed on them, the parties are able to determine who they would like to hear their dispute. With a range of potential arbitrators available – retired judges, QCs, partners in law firms and junior counsel, parties have a choice and are able to bring in who is best to deal with their particular dispute; 
• The expert, oral and written evidence that the parties believe is needed to address the issues in the case rather than the more restricted evidence that current pressures on the court-system require be imposed;
• The possibility of review hearings and trialling solutions;
• Usually a real endeavour to pin down the key issues that need to be addressed: the parties have autonomy in arbitration and are able to work together to determine the best process to deal with their case. There are no 'set tracks' but rather an ability to agree a proposed way forward; 
• Control and pacing: the parties are able to ask the arbitrator to deal with matters expeditiously if an urgent adjudication is required. Alternatively, if they feel they would like to take their time in resolving their dispute that is also an available option;
• Confidentiality – crucially, in a time where openness and transparency are the buzz words in the family law arena, for clients who need confidentiality, this can be assured within the context of arbitration; 
• Informality – the whole procedure is much less formal and many of the clients who have been through arbitration have spoken about feeling included in the process rather than the court process which can often be alienating and frightening.