15 years ago a number of family lawyers got together and thought that it may be sensible to mirror our colleagues in the civil litigation world by considering the idea of arbitration in the family law context.
In 2010 the idea gained momentum and led to the launch of the IFLA
(Institute of Family Law Arbitration) Scheme for financial cases in April 2012. Since that time 220 financial arbitrators have been trained and over 90 financial arbitrations undertaken.
To find out more about the Scheme and to search for an arbitrator, information can be found on the IFLA website
, the Resolution website
We are now deemed to be world leaders in family law arbitration! Much of the success can be attributed to the judicial support and encouragement we have seen in a number of cases:
- In W v M (TOLATA Proceedings) (Anonymity)  EWHC 1679 (Fam),  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)  EWHC 3462 (Fam),  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  EWHC 100 (Fam),  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)  EWHC 7 (Fam),  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  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'.
Sir Peter Singer has developed standard arbitration orders which have the approval of the President who in November, issued guidance
to further advance the efficient interface between judicial and arbitral systems, laying out the ways in which:
- 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.
Further encouragement outside the court room has been forthcoming from eminent retired members of the Judiciary, including Sir Hugh Bennett: 'in my estimation the advantages so outweigh what are said, very inaccurately, to be disadvantages, that I confidently predict that within the near future family arbitration will complement the court system just as private medicine complements the National Health Service'.