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family law, arbitration, mediation, resolution week, a better way, divorce
In 2012 the Institute of 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.
This awareness-raising week aims to highlight the alternatives to court for separating couples and their families.
Support the campaign on Twitter using
#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
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