Rhiannon Graves For Avadis & Co. Solicitors
16.2.2016
In 2012, the Institute of Family Law Arbitration (ILFA) launched the Financial Arbitration Scheme as an alternative method of dispute resolution in family law [1]. The scheme, which covered family financial and property disputes, allowed couples to resolve disagreements without going through the court system. Arbitration has had a long history in areas such as commercial law, and its benefits are unmistakeable; this form of dispute resolution allows not only for quicker decisions, but also for a greater say in the handling of the case.
The process also offers cost-effectiveness as a result of its shorter time frames than traditional dispute resolution methods. Since it was introduced, more than 220 arbitrators have been trained as part of the ILFA scheme, and over 80 arbitrations have been completed [2]. Despite its success, the scheme is currently only applicable to finance or property disagreements, so disputes over child arrangements which cannot be solved through mediation must go through the courts. This is set to change, however, with the launch of a new Child Arbitration Scheme [3].
The new scheme will give parents the opportunity to resolve disputes regarding parental responsibility, child welfare and living arrangements for children via an arbitrator rather than resorting to the courts. Parties to a dispute will have greater flexibility under the scheme, with control over the time and place at which meetings are held, the scope of the arbitration and the choice of arbitrator. The confidential nature of the process (coupled with the ability for a case to be dealt with from beginning to end by one arbitrator) makes it particularly attractive for sensitive family situations such as custody arrangements [4].
The decision to expand the ILFA’s remit to child arbitration follows strong judiciary endorsement of family arbitration. On such endorsement was delivered by Sir James Mundy, President of the Family Division, in the case of S v S EWHC [2014]. Sir Mundy’s ruling found there to be “nothing in the Arbitration Act 1996 which … would preclude arbitration as a permissible process for the resolution of disputes rooted in family life or relationship breakdown”.
Further, his judgement established that there is no theoretical difference between parties making an agreement and agreeing to go through an arbitrator: “Indeed, an arbitral award is surely … stronger than a simple agreement between parties”. Sir Mundy also voiced his approval of the IFLA Financial Arbitration Scheme, stating that its “sophisticated” process renders it “difficult to contemplate … a case” where a judge would not approve the order [5].
The new Child Arbitration Scheme and the rules under which it will operate are currently being finalised, and training events for arbitration practitioners are planned from the end of February. The IFLA plans to roll-out the scheme in July 2016, with the hope that opening up arbitration to disputes over children will ease the congested family court system [6].
References:
[1] http://www.resolution.org.uk/news-list.asp?page_id=228&page=1&n_id=175&n_year=2012
[3] http://ifla.org.uk/what-is-arbitration/faqs/
[5] http://www.familyarbitrator.com/wp-content/uploads/CommentSheetS-v-S-140114.pdf
[6] http://www.resolution.org.uk/news-list.asp?page_id=228&page=1&n_id=309