Family barrister and Chartered Family Arbitrator, Timothy Spain examines the case of S-v-S [2014] EWHC 7 (Fam) and its implications on Alternative Dispute Resolution, in particular Family Law Arbitration.
On 15 January 2014 the President, Sir James Munby took the opportunity presented by S-v-S to transfer a case from Guildford County Court at his own direction for a Consent Order to be approved which followed and was intended to give effect to, an arbitral award made by Mr Gavin Smith in an arbitration conducted under the Institute of Family Law Arbitrators (IFLA) Scheme.
The President referred to the description of the IFLA Scheme by Sir Peter Singer in “Arbitration in Family Financial Proceedings: the IFLA Scheme Part 1 [2012] Fam Law 1353 and Part 2 [2012] Fam Law 1496. Up to date details of the Scheme and arbitrators accredited under it can be found on IFLA’s website.
The President made it clear that:- “There is no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make the decision for them”
Where approval of a consent order is sought from the Court, the President indicated that “the judge will not need to play detective unless something leaps off the page to indicate that something has gone so seriously wrong in the arbitral process as fundamentally to vitiate the arbitral award.”
He indicated that the “streamlined” process advocated by Coleridge J in S-v-P (Settlement by Collaborative Law Process) [2008] 2 FLR 2040 should be used in arbitration cases. Recitals to the order should be included setting out the parties’ agreement to the arbitration process and the invitation to the court to approve the consent order which should have appended to it the agreed submission to arbitration and the arbitrator’s award.
If a party seeks to resile from an arbitral award the traditional “Notice to Show Cause” procedure should be adopted and only an abbreviated hearing would be permitted save in exceptional circumstances. The case will focus on whether the party seeking to resile can establish a ground of challenge or appeal within the boundaries of the Arbitration Act 1996.
Intriguingly the President extended an invitation to the Family Procedure Rules Committee to consider procedures for a stay of the financial remedy application proceedings whilst the arbitration is pursued.
The IFLA Scheme is recognised as providing for litigants advantages in terms of speed (there are specific time limits for the delivery of the arbitral award) flexibility (the parties largely decide the subject-matter and parameters of the arbitration), cost (the costs are fixed) and confidentiality (as confirmed by the President in S-v-S).
The Institute of Family Law Arbitrators Scheme could therefore not have hoped for a more ringing endorsement and has hopefully "come of age".
As well as sitting as a Deputy District Judge, Timothy Spain is a member of the Institute of Family Law Arbitrators (IFLA) Panel and is qualified to conduct Family Law Arbitrations and make orders under the IFLA rules, including in matrimonial finance and Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) proceedings. Timothy is a member of Trinity Chambers' Arbitration,Costs, Family and Matrimonial Finance, Mental Health and Court of Protection practice groups.
Trinity Matrimonial Finance barrister, Nicola Shaw is also a Chartered Family Law Arbitrator and the team are able to undertake Arbitrations. With its extensive conference rooms, Trinity also has full facilities to undertake Arbitrations and indeed Mediations in its Chambers in Newcastle and Teesside. The team are also able to deliver this in external venues such as hotels, solicitors offices etc.
If you have any ADR queries regarding either Arbitration or Mediation please contact Senior Clerk, Alison Dickason alison@trinitychambers.co.uk, or telephone on 0191 245 9590.