Family Law

Family arbitration has been successfully launched in several countries recently and is having a kick-start in those countries where it is presently available but underused.

There has been a recent endorsement and encouragement at the 6th World Congress on Family Law and Children's Rights in Sydney, Australia, in March 2013. The Congress passed the following motion amongst other motions:

This Congress:

• encourages arbitration as an innovative and useful means and opportunity for resolving private international family law disputes, whenever possible and appropriate, and alongside other dispute resolution methods; and
• invites the EU and the Hague Conference to incorporate arbitration as dispute resolution within future family law measures; and
• supports the creation and sharing of good family law arbitration practice between jurisdictions and professions

This was primarily arbitration to be used in cross-border disputes where specialist family lawyers, trained as arbitrators and with experience of international cases, can help international families in a variety of disputes. But it is also highly applicable to encourage entirely national arbitration.

Although the English IFLA Scheme is explicitly only on the basis that arbitration is in accordance with English law, the rules and structure of the scheme were significantly borrowed from family arbitration models in Canada and Australia and share many similarities. The Scottish arbitration model, launched a year or so before the English scheme, has many similarities. So there is now in existence arbitration rules which embody the best of various schemes around the world. Therefore any lawyer in a country considering family arbitration to help resolve a dispute can take from the IFLA Scheme rules by adapting to their local situation and without the reference to English law.

A number of jurisdictions around the world are actively looking at introducing family arbitration and there is no point each country reinventing the wheel and writing its own arbitration scheme afresh every time. There are many advantages in sharing experiences around the world in setting up, promoting and training in family arbitration. Equally, as practitioners, we have much to learn from each other in other jurisdictions.

One common theme across much of the Western world is the scarcity of available resources being presently committed to the family justice system in many countries. When the English IFLA Scheme was being set up, we were aware that one benefit and attribute was the saving of court time and court resources, especially as they are often very overstretched with existing work. The development of arbitration is very timely with the difficulties experienced in many countries with the family court systems.

The EU Mediation Directive has had a valuable impact on governments in promoting mediation in family law in various ways. But it is primarily mediation rather than other forms of appropriate dispute resolution. It is to be hoped that the EU and The Hague conference will in future legislation incorporate arbitration as one of the dispute resolution methods.

Reciprocal enforcement of family court orders is one of the most problematical areas of international work. Yet within the sphere of arbitration there is a multilateral convention, the New York Convention, which allows automatic recognition and enforcement of arbitration awards between countries. It works very successfully in civil work but a number of countries have historically made a reservation to exclude family matters. At this time of renewed commitment to the opportunities of family arbitration, nationally and in cross-border work, countries should withdrawal their reservation so that family arbitration awards can be recognised and enforced across national borders and probably in a way that could be easier and more successful than through court orders.

These are new developments which are moving fairly fast. The IFLA Scheme only launched in February 2012. But with this and other encouragements to the use of family arbitration in cross border work, the time will come soon when there will need to be both a recognised panel of trained and experienced family lawyers working as arbitrators in cross-border work, including good practice in these cases.

The World Congress has given very significant encouragement to national and cross-border arbitration as a result of its Motion.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.