What is family arbitration?
Arbitration is a form of dispute resolution which takes place outside a formal court room. The parties enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to adjudicate a dispute concerning finances or children. They agree to be bound by the reasoned written decision of the arbitrator. The arbitrator’s decision is called an Award (finances) or a Determination (children).
What are IFLA and the IFLA Scheme?
IFLA and the IFLA Schemes are the result of collaboration between Resolution, the Family Law Bar Association (FLBA), The Chartered Institute of Arbitrators (CIArb) and the Centre for Child and Family Law Reform (CCFLR). The Schemes operate under the Institute of Family Law Arbitrators (IFLA), a not for profit company, the members of which are CIArb, Resolution and the FLBA. CCFLR is also represented on the Board. IFLA is chaired by Lord Falconer.
IFLA has developed its arbitration Schemes to enable parties to resolve family disputes more quickly, cheaply and in a more flexible and less formal setting than a court room.
The IFLA Scheme is made up of: The Financial Scheme, launched in 2012, and the Children Arbitration Scheme launched in 2016. Each Scheme operates under its own Rules (the Rules), specially designed to meet the particular needs of a family arbitration.
Who takes the decision?
Arbitrations are conducted by members of a panel of trained and accredited arbitrators. There are separate panels for Financial and Children arbitrations. Some arbitrators are members of both panels. Panel members are all members of CIArb, and are listed on the IFLA website.
The administration of the Schemes is managed by Resolution on behalf of IFLA, and the training and regulation of arbitrators are supervised by CIArb.
What law applies to arbitration under the Schemes?
The law of England and Wales (this jurisdiction) applies to all arbitrations under both Schemes. The parties cannot apply a different law to the arbitration. Any agreement which seeks to apply a different system of law will not be registered under the two Schemes.
What areas does the IFLA Financial Scheme cover?
Any financial and property disputes arising from family relationships including (but not limited to) disputes under:
- Matrimonial Causes Act 1973
- Inheritance (Provision for Family and Dependants) Act 1975
- Part III Matrimonial Finance and Property Act 1984
- Sch. 1 Children Act 1989
- Trusts of Land and Appointment of Trustees Act 1996
- Civil Partnership Act 2004
- Married Women’s Property Act 1882
What areas are not covered by the IFLA Financial Scheme?
- The liberty of individuals
- The status of individuals or of their relationship
- Any arrangements regarding children except for financial arrangements
- Bankruptcy or insolvency
- Welfare benefits
- Jurisdiction or stay cases
- Issues over recognition of a foreign marriage or divorce
- Decisions from Sharia councils and other similar bodies
Arbitration only binds the parties to an arbitration agreement. Arbitrators have no jurisdiction over any other person or organisation.
What areas does the Children Arbitration Scheme cover?
- Generally, any issue between parents or other persons holding parental responsibility or a sufficient interest in a child’s present or future welfare
- Where a child should live including shared living arrangements
- Visiting arrangements including holiday time to be spent with a non residential parent
- Disputes concerning routine and non life threatening medical treatment
What areas are not covered by the Children Arbitration Scheme cover?
- Applications to have a child returned to this jurisdiction from another country
- Applications to remove a child from this jurisdiction, whether permanently or for a temporary period (e.g. for a holiday) to another country
- Disputes which involve the jurisdiction of a court outside of England and Wales
- Disputes concerning the authorisation or management of life-changing or life-threatening medical treatment
- Any dispute where a person under 18 years of age has parental responsibility for the child
- Any case where a party to the proposed arbitration lacks capacity under the Mental Capacity Act 2005
What are the benefits of family arbitration?
The principal benefits of arbitration are:
- Speed: Subject to the arbitrator’s availability, the timetable is up to the parties to agree. The parties avoid the risk of a case being adjourned or not finished because of pressure on court time or a judge becoming unavailable. Arbitration is likely to take significantly less time than court proceedings.
- Confidentiality: The entire process is protected by strict confidentiality under the Rules of both Schemes.
- Costs: The parties have to pay the arbitrator’s fees, the cost of any venue which is hired, and the cost of a transcription service, if required. However, the ability to limit disclosure and the scope of the dispute, if properly utilised by the parties, should in many cases lead to a cost saving, since the parties can agree to slim their case down and concentrate on the essential points to be decided.
- Flexibility: Under the Rules of the Schemes the parties and the arbitrator have considerable discretion over the procedures they adopt in order to reach a fair result under English Law.
The parties define the scope of their arbitration. In many cases they will want all their differences arbitrated. Alternatively, the arbitration may be limited to agreed issues, leaving room for further negotiation or application to the court. It is possible for the arbitration to be completed on paper, if the parties agree or the arbitrator decides this is the best approach, further reducing costs.
The parties in consultation with the arbitrator have complete flexibility as to the time and place of hearings.
- Choice of arbitrator: Parties to a dispute do not have the right to choose their judge, but they do have the right under the Schemes to choose their arbitrator. Knowing that a dispute will be resolved by a selected specialist with appropriate experience will be very attractive to many parties and their advisers. Once appointed, the arbitrator deals with all stages of the case from start to finish.
How does arbitration fit in with mediation?
Arbitration resembles court proceedings. An arbitrator will produce a decision after hearing the evidence and each party’s arguments in support of their case. By contrast, a mediator helps a couple reach their own settlement through agreement.
Arbitration and mediation can complement each other.
The arbitrator may consider that mediation would benefit the couple and would then suggest this. Mediators can also recommend arbitration if mediation breaks down or if an agreement is reached in mediation on most but not all issues. It is therefore possible for a mediator to refer a specific part of a dispute to arbitration, in order to resolve a sticking point during the course of mediation.
Unlike court proceedings arbitration can deal with a single issue.
How do the IFLA Schemes differ from arrangements made through religious bodies including Sharia councils?
Arbitrators under the Scheme are specialist and experienced family lawyers specially trained in family arbitration, many having judicial experience. They are subject to the disciplinary code and procedures of CIArb, the self-regulatory professional body for arbitrators.
The arbitration must be conducted in accordance with English Family Law, which makes the arbitrator’s decision enforceable. Decisions made in other forums which do not apply IFLA Rules (and in particular the requirement that only English law is applicable) do not have the same advantage.
Since the arbitration Award or Determination is based on the principles of English family law it is likely to be similar what a court might order and will be recognised and incorporated into a court order when required. IFLA arbitrations have the support of many senior judges.
How do I start arbitration under the Schemes?
The first step is to complete and submit an application: either a Form ARB1FS for the Financial Scheme or ARB1CS for the Children Scheme. The Forms record the agreement to arbitrate and acceptance of the Rules of the Scheme, and must be signed by both parties or their legal representatives may sign on their behalf.
The parties can either nominate an IFLA arbitrator or invite IFLA to nominate the arbitrator. They can agree a short-list but invite IFLA to select at random from the list.
Many arbitrators will at this stage suggest a meeting to discuss the nature of the arbitration. It is also an opportunity for prospective participants to meet the arbitrator before deciding whether to proceed with that arbitrator.
The Forms stipulate that the parties agree that the arbitrator’s decision will be final and binding and that, if necessary, they will apply for a court order to give effect to it.
What happens next?
After the appropriate Form is submitted to IFLA:
- The appointment is offered to the arbitrator
- The arbitrator seeks the parties’ agreement to his or her terms
- The arbitrator accepts the appointment and the arbitration formally begins
- The arbitrator contacts the parties with a view to progressing the arbitration, by agreement or (after listening to each party’s point of view) as directed by the arbitrator
- Often (though not necessarily) there will then be a meeting with the arbitrator to decide what needs to be done to get the case ready for arbitration.
Is arbitration possible even if we are currently involved in court proceedings?
Yes all family court judges are aware of the benefits of arbitration. Recent changes to court rules give judges the power to adjourn court proceedings to give the parties the opportunity to resolve the dispute through arbitration (as well as mediation and other forms of dispute resolution) without affecting the parties’ right to resume the court proceedings.
However, once an arbitration agreement (in either Form ARB1FS or ARB1CS) has been signed by both parties (and their legal representatives on their behalf) the court proceedings should be stayed (halted) to await the outcome of the arbitration. Then the arbitration Award or Determination can be incorporated into an order in those proceedings.
How are IFLA arbitrators trained, and what qualifications do they have?
Training and qualifying as a family law arbitrator is available only to those who satisfy the conditions established by IFLA. All IFLA arbitrators are experienced family lawyers who have successfully completed a training course on family arbitration run by CIArb, selecting to qualify under the Financial or Children Scheme or both. On successful completion of the relevant course it is also a condition that they become and remain members of CIArb, the self-regulatory professional body for arbitrators. CIArb lays down ethical codes for its members and deals with complaints of misconduct through its Professional Conduct Committee.
Do I need a lawyer to represent me?
It is strongly recommended that every prospective participant should take legal advice before entering into an arbitration agreement (ARB1FS or ARB1CS) in order to understand the implications and effect of the arbitration process and of the Award or Determination. On signing the Form ARB1FS or ARB1CS parties are asked to confirm that they have had legal advice on the arbitration agreement.
Arbitration retains similarities with court proceedings so representation by a lawyer may be the most effective way to present a case and the legal arguments in support.
What are the powers of the arbitrator?
The arbitrator has wide-ranging powers to make decisions on any case management or substantive issues on which the parties cannot agree. In the absence of agreement, an arbitrator can, for example:
- Decide what matters are included in the arbitration.
- Decide on the evidence required, the amount of disclosure, the need for written submissions and whether an oral hearing is needed.
- Make temporary orders including maintenance for a spouse.
- Make decisions about the inspection or preservation of property in dispute.
- Appoint an expert or assessor.
- Unlike a judge, the arbitrator has no power to interview or meet the child or children concerned in a children case. However the arbitrator may appoint a suitably qualified independent social worker to see the child or children.
What are the costs of a family arbitration? Who is responsible for the costs?
There are two main types of costs:
The arbitrator’s fees and expenses
The arbitrator and the parties will set the level of the arbitrator’s fees (either on an hourly or daily basis, or for an overall fixed fee) by agreement at the outset of the arbitration.
The usual arrangement will be for the parties to pay the arbitrator’s fees and expenses (as well as IFLA’s fees and expenses) in equal shares. However, the arbitrator has a discretion under the Rules to order a party to pay more than an equal share (even up to the full amount) if that is appropriate because of the conduct of that party in relation to the arbitration.
The legal or other costs of the parties
These are the costs incurred by a party in engaging lawyers to prepare for and represent them in arbitration, as well as such costs of hiring a venue for a hearing. The usual arrangement will be for each party to pay their own legal costs, and not to make any payment towards the other party’s legal costs. The costs of a venue (and similar costs) will usually be shared equally. However, the arbitrator has discretion under the Rules to order a party to pay part or all of the legal or other costs of another party if that is appropriate because of the conduct of that party in relation to the arbitration.
Outcomes and their enforcement
At the conclusion of the arbitration the arbitrator will issue an Award (financial) or a Determination (children). The decision it contains is the equivalent of a final judgment and is binding on the parties.
Under English family law the parties cannot reach an agreement which excludes the power that the court has to make its own orders. However, it is highly likely that Courts will endorse Awards and Determinations made under the IFLA Schemes. In financial cases the parties will need to apply to the court for an order in the same or similar terms as the Award or Determination.
The President of the Family Division, Sir James Munby, has recognised an IFLA arbitration Award in an important decided case which, it can safely be assumed, other judges will follow. In the course of his judgment, the President commended the quality of the IFLA Financial Scheme.