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Family Law Arbitration: a judicially recognised alternative to the Family Court

Date:3 JUL 2014
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Family Dispute Resolution Facilitator
Some comments extracted from an address by Sir Peter Singer on the occasion of the launch (by courtesy of the Inner Temple) of this book on 24 June 2014.

It is a great honour and pleasure for me to be invited to address the more than 100 of you who have come here this evening to celebrate the publication by the Law Society of Dennis Sheridan's timely book describing the process and procedure of an IFLA Scheme Arbitration for the determination of a post-relationship breakdown financial dispute.

IFLA denotes the Institute of Family Law Arbitrators whose Advisory Committee Chairman HH Judge Donald Cryan has contributed not only prefatory words to this congregation but also a Preface to the slim volume which Dennis Sheridan has written and compiled. Dennis is the senior partner of D R Sheridan LLP and one of the 130 or so experienced and accredited arbitrators who have achieved Membership of the Chartered Institute of Arbitrators. (A list of these arbitrators is available for inspection at IFLA.org.uk)

I should though just mention the two rather more formal but certainly very instructive Guides (one for the public and one for professionals) recently published by IFLA.

Sir James has this evening suggested that one way to make arbitration an even more irresistible (my words, not his) option would be the offer to both parties by all the professionals involved and the arbitrator of a fixed fee to cover the whole dispute from the agreement to arbitrate right through to the Award. I can indeed of course appreciate the allure of that for parties who would like to put a pre-determined and fixed cap on their fighting fund. But there do seem to me to be some practical complexities with which we would need to wrestle before such an arrangement could be marketed. To start with there would be the difficulty, or as it seems to me the near impossibility, of fairly pitching an overall fee apt for even the most apparently straightforward of cases. And what would be the prospect of agreement amongst the professionals on the allocation of the total as between themselves? To this later difficulty arbitration may however provide the answer: the legal professional participants should bind themselves in advance to be bound by the allocation decision of the arbitrator and should foreswear launching any challenge based on his or her alleged lack of impartiality!

But the President is undoubtedly correct that if it were possible to reduce the risk, so ever-present in in-court litigation, of runaway fees careering out of control, that would be a significant additional potential advantage for arbitration as a process. And it is unsurprising that arbitrators are being approached by prospective customers asking for an all-in quote. The obverse of that is that the customers and their lawyers will need to become less reticent about what the case truly involves in terms of complexity and the time likely to be spent on it. There is no reason why arbitrators should be dependent for repeat business on buying (or in this instance selling) a pig in a poke!

I foresee the day when principles analogous to those of the IFLA Financial Scheme spread across the family dispute board to include child welfare issues. Those who established the IFLA Rules sensibly limited their application to the broad gamut of financial disputes. But as near as in Scotland, and in other jurisdictions where arbitration of family disputes has proved acceptable, disputes concerning children are not thus off limits. Baker J in AI v MT (Alternative Dispute Resolution) [2013] EWHC 100 (Fam), [2013] 2 FLR 371 showed the way, allowing parties to arbitrate child issues in their chosen New York Beth Din, albeit reserving the right to the English judge to sanction or to veto the solution which emerged. In that sense the arbitration in that case was correctly, if curiously, described as 'non-binding.'
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But is that really so different from the ultimate s 25 ability of a court not to sanction an arbitral award if it is plainly (if I may put it in the vernacular) off the wall? Why should the principle so supportively clarified and established by the President (in S v S (Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam),[2014] 1 FLR 1257) of judicial non-intervention in awards under the IFLA Scheme unless strong cause be shown not apply with equal force to the decision as to their child's welfare taken by an experienced family arbitrator to whom the child's parents have turned for a determination by which they both agree in advance to be bound?

I think that the time has come, and if not it soon will, for serious consideration of the pros and cons of this suggested expansion of arbitration as a dispute resolution technique.

IFLA, individual arbitrators and the websites some of us have established, and now Dennis Sheridan by this book, have collectively spent a great deal of energy and shown a great deal of initiative over the period of just over two years since this Scheme went live in spreading the word. This has to date primarily involved persuading our referral professions, family solicitors and the bar, to accept arbitration as a viable alternative to the court process for those parties who are unable, or not fully able, to reach an agreement and who therefore require a third party determination to bring finality to their dispute. Nothing is so unnerving as the unknown, and for those many family practitioners who have as yet no personal or even second-hand related experience of how the process works, its requirements and its limitations, nor yet of the many advantages it can bring, arbitration is still a closed book which hopefully this book will help open.

But there are other potential audiences for news of this development. It would be refreshing as well as encouraging if the press and other media would sensibly inform the public that this is a technique which for the right disputes holds out significant advantages, whether the dispute is between a couple whose net worth is of the highest and who may have fame to match their fortune, just as much as for Mr and Mrs Average.

The other universal audience whose attention we have not yet engaged is indeed the public at large. I put out a plea for anyone with the ear of a soap's scriptwriter to encourage the early introduction of an arbitration-line in the plot. I look forward to the day when Coronation Street and/or Eastenders and/or the Archers run arbitration as the solution to the woes wrought by family breakdown amongst their cast. Let arbitration become the toast of the Rovers, the topic of hot gossip in Albert Square, and be kept bubbling on the hob like the kettle at Brookfield Farm…

Family Law Arbitration: a judicially recognised alternative to the Family Court can be purchased online here.

Sir Peter Singer is one of the editor/managers of FamilyArbitrator.com where free access may readily be had to many resources in relation to arbitration.