The
co-editors of
www.FamilyArbitrator.com have devised a comprehensive checklist of
topics and considerations for discussion at the First Directions Appointment.
This is usually the first stage once an IFLA family financial arbitration is
commenced. Prior to the meeting, the parties are invited to fill in what is in
effect a Scott Schedule for exchange, on an informal basis, both so that common
ground can be established and to clarify where issues may arise that will need
determination at that meeting.
The
checklist may also however give those unfamiliar with an IFLA arbitration a
good understanding of the options which are available and the extent to which
the parties can influence the procedure they would like adopted for the
resolution of their dispute.
What
follows is a list of what we think are the most important and instructive
questions, which both illustrate the nature of the process and underline its
pragmatic flexibility.
- Please
confirm that there are no outstanding issues or questions as to the terms and
conditions of your arbitrator's appointment.
- Have
any allegations of violence or significantly oppressive conduct been made by
either party which may affect the suitability of the matter to be dealt with by
arbitration?
- Meetings
and hearings are ordinarily held with both parties together. Does this create
any concerns for you?
- Do
you have any special requirements and/or disability of which the arbitrator
should be made aware?
- Any
there any particular points in the IFLA Rules which you wish to suggest might
be amended or qualified for the purposes of this arbitration (save for Art 3
which immutably requires that the arbitrator should apply the law of England
and Wales)?
- If
the arbitrator has disclosed any actual or potential conflict of interest or
any matter that might give rise to justifiable doubts as to his or her
impartiality do you waive any objection or do you wish him to stand down?
- Which
party should be designated as the lead party in the arbitration?
- Please
confirm the mode of communication between meetings that you prefer (email 'to
all' is the arbitrator's preference).
- Should
the other party provide security for fees and expenses?
- Do you consider that there are any
aspects of the dispute (or indeed the whole arbitration) that may be
appropriate for a cap on recoverable costs?
- Save for the Form ARB1 [the formal
arbitration agreement], have you agreed anything in writing which affects the
procedure for the arbitration?
- Do you wish the arbitrator to have
the authority to record any agreements reached at the preliminary and subsequent
meetings on your behalf?
- Are you content that the issue/s to
be determined by this arbitration are clearly identified in the Form ARB1? If
not, please append any alternative draft for discussion.
- Do you have any other points of
concern or procedural/case management issues that need to be raised at first
meeting?
- If you have been or currently are
engaged in legal proceedings concerning the same dispute, briefly state their
nature, the stage reached, and the date of the next hearing if any has been
fixed.
- If you are currently involved in any
other kind of dispute resolution (mediation or round table discussions) then,
without disclosing anything relating to the negotiation, has that process come
to an end or do you hope to resume it at a later stage?
- Preferred mode of convening interim
meetings: in person, by telephone (conference call), or Skype?
- Do the issues suggest that any other
person, company or trust should be invited to join the arbitration?
- What procedure should be adopted for
the arbitration, ie Art 10 [a framework akin to fast-tracking under the CPR]
or Art 12 [an alternative more in line with the FPR, Part 9] or some
adaptation?
- If Art 10 is to be followed, are
written statements of claim and defence to be prepared? If so, in what sequence
and by when? What form should they take: e.g. pleadings, or statements with
evidence exhibited?
- Is
there or is there likely to be any application for provisional relief under s.
39 of the Arbitration Act 1996 as restricted by Art 7.2 of the Rules [whereby
the parties agree that the arbitrator will have the power to make orders or
awards to the same extent and in the same or similar form as would a Judge
exercising the jurisdiction of the High Court: but this power does not extend
to interim injunctions or committal, nor is there any jurisdiction over
non-parties without their agreement].
- [If
the parties to the arbitration are married] has decree nisi been ordered and,
if not, has a date been set?
- Are
there any preliminary issues or discrete findings of fact which would be more
appropriately, conveniently or economically determined prior to a final
hearing?
- Should
there be disclosure/discovery of documents, and if so, to what extent and by
when?
- Should
there be an oral final (or interim) hearing or is this arbitration suitable for
written submissions only?
- Are
strict rules of evidence to be applied or a more flexible approach adopted?
- When
and how (simultaneously or sequentially) should witness statements be exchanged?
- Are
expert witnesses to be appointed? If so, what are to be their terms of
reference and what type of declaration (eg CPR Part 35 or FPR Part 25) is to
be used?
- Is
the arbitrator to receive evidence on oath? If yes, do you have a preference as
to swearing (and upon what holy book) or affirming?
- How might the evidence be regulated?
E.g. examination-in-chief limited to written statements only or are further
questions to be permitted? Is there to be any time limit on cross-examination?
- May witnesses be in the hearing room
when not giving evidence?
- Where do you wish any oral hearing
to take place?
- Do you wish to undertake the costs
of professional transcription of the final hearing, or any part of it?
- Please indicate your estimate of the
length of hearing, to include final submissions (unless these are to be
delivered in writing subsequently).
- How many witnesses do you wish to
call? At this stage are you able to state to what issue they will speak? The
parties will need to agree a witness template once this information has been
provided.
- Is there a need for skeleton arguments and/or written
openings and/or chronologies and/or statement of issues? What do you suggest?
- Bundle format – FPR PD27A?
- Do you wish to suggest draft
directions? If so, these should be typed on a separate sheet and appended to
this document.
- Do you wish expressly to exclude the
right of appeal on a point of law (an option available under s. 69(1) of the Arbitration
Act 1996)?
- Do you wish to agree to dispense
with reasons for the award? (Note that to do so is treated as an agreement to
exclude the court's jurisdiction to appeal on a point of law: see s. 69(1): it
is strongly urged that the parties should require a reasoned award, so that any
court will know the basis upon which the award has been reached.)
- Do you (upon payment of the balance then outstanding of the arbitrator's
fees and any expenses jointly between the parties) wish to be provided with the
award in draft so that you have an opportunity to suggest any factual
corrections and any areas you maintain should have been covered in the reasons
as then stated? (Please note that this provision does not afford an opportunity
for further substantive argument upon points which have been determined.)
This article was originally published on
www.FamilyArbitrator.com and has been reproduced here with permission of the copyright owners,
Sir Peter Singer, Gavin Smith and Rhys Taylor.
FamilyArbitrator is a resource for those wishing to learn about or engage in family arbitration. See the '
Key Information' tab at the top of its homepage for more details.
