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Book review: Family law arbitration: A judicially recognised alternative to the family court
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Family law arbitration: A judicially recognised alternative to the family court
Dennis Sheridan
Law Society, £79.95, paperback, 128ppUpon opening Dennis Sheridan’s new volume
Family Law
Arbitration (Law Society) I felt a twinge of disappointment - disappointment
because I had not had the gumption to write something similar myself. Dennis is to be congratulated for his efforts by
all involved in the burgeoning family arbitration project in England and Wales.
As an early graduate of the training course for the Institute
of Family Law Arbitrators’ (IFLA) Scheme, I attended a number of the
preliminary meetings to discuss how it was going to be introduced. It seemed
fairly obvious to me that the already change-beleaguered family law profession
was not going to embrace yet another non-court dispute resolution option,
unless its benefits and workings were clearly set forth. A book was crying out
to be written. I even discussed the possibility of a book with a publisher, but
ducked the challenge. My real difficulty was knowing what to write about.
As a non-court dispute resolution option, the obvious place
to start was by describing the IFLA scheme itself. However, there are
complexities to be explored: the arbitration technique has a long and successful
track record in the commercial sphere but there is, to date, no decided family
case as to how the established jurisprudence of the Arbitration Act 1996 will directly
apply in the financial remedy context. Whilst arbitration is a non-court
dispute resolution option, unlike mediation it enjoys a substantial underpinning
by the supportive and supervisory provisions of the Arbitration Act 1996, which
may entail applications to court from time to time if either the parties (or
indeed the arbitrator) step out of line. A tome speculating on how the Family
Court might apply the Arbitration Act 1996, in advance of any decisions, would
have risked being both spectacularly complicated and wrong.
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For the present, the President has signalled the Family
Court’s support for family arbitration in the seminal decision of
S v S
(Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam),
[2014] 1 FLR 1257. This is set out in full in
an appendix to the book. His Lordship made plain his view (though on this
occasion by way of a judgment rather than by proclamation from his Chambers) at para [12] that 'there is nothing in the Arbitration Act 1996 which on the face of it
would preclude arbitration as a permissible process for the resolution of
disputes rooted in family life or relationship breakdown'. In any challenge to
an arbitral award, His Lordship continued at para [26], 'the focus is likely to be
on whether the party seeking to resile is able to make good one of the limited
grounds of challenge or appeal permitted by the Arbitration Act 1996'. More
recent developments have been that the President’s Money and Property Group
(chaired by Mostyn and Cobb JJ) has been tasked to consider how the Arbitration
Act 1996 will be procedurally integrated and streamlined into financial remedy
proceedings; and a standard order to stay financial remedy proceedings in
favour of an arbitration is among the draft Standard Orders currently under consideration.
However, Dennis has judged this introductory book just right
by keeping it straightforward and concentrating on the workings of the IFLA
scheme, as opposed to delving into the case law on the Arbitration Act 1996. Arbitration’s objective is to ‘keep it out of
court’ and so I can perfectly understand why how it works out of court is the
book’s focus.
The introductory narrative can be read in an hour or so and
the appendices helpfully set out key documents which parties involved in
arbitration will need to turn to. It contains the
IFLA Rules, the relevant
provisions of the
Arbitration Act, and an
indispensable checklist of matters to
have in mind when commencing an arbitration, together with other practical
documents. It is the ideal practical introduction to family arbitration for
lawyers and parties alike. It cross-refers to where more detailed and
developing information may be obtained, such as the information site
www.familyarbitrator.com (in which I
must own a part).
Dennis’ book will be very much at home as a standard
'family' work in bookshops and family law libraries alike. The arbitration
section of a legal bookshop is pretty much foreign territory to us family
lawyers. For those looking for an up-to-date and clear exposition of the jurisprudence
under the Arbitration Act 1996, can I commend Harris, Planterose and Tecks on The
Arbitration Act 1996 (5th edn, Wiley Blackwell). This is a standard handbook (which is endorsed by the
Chartered Institute of Arbitrators) which explains how the Arbitration Act 1996
works in the commercial context. It will be very interesting to see how much of
the jurisprudence therein ultimately finds its way into the next edition of
Dennis’ excellent introduction.
