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Somebody famous once sang “love is the answer”. In fact, we are sure several people have. However when it isn’t the answer, then, as our regular readers will know, we feel that litigation should be a process of last resort wherever possible. We are firm believers in assisting our clients to explore all alternatives to court. We understand the benefits to families of mediation, collaborative law and arbitration.

So, we were delighted that the President of the Family Division of the High Court has given a big thumbs up to binding family arbitration. Last week he took the opportunity of giving a judgment in open court to make clear his general approval of out-of-court agreements reached through arbitration and of the process itself.

Before taking a look at his judgment, if you need a recap on how Family Law Arbitration works, we wrote about it last year when the new scheme was launched by the Institute of Family Law Arbitrators (IFLA).

Generally speaking, arbitration is where an impartial, trained third party makes a binding decision in a dispute. It will be agreed beforehand what the areas of dispute are, and on what the arbitrator is required to make a decision (for example an overall financial settlement in a divorce case, or something more specific such as for how long maintenance should be paid). The process does have some similarities to a court determination in that the arbitrator will make a decision after hearing arguments from both parties, and that decision will be binding unless later unravelled by a court because something is proved to have gone wrong in the process.

It is usual in family arbitration to agree how such things as financial disclosure will be dealt with, and in that respect there are similarities with mediation and collaborative law. The arbitrators themselves are all experienced family law solicitors, barristers and former judges who have undergone further training to enable them to conduct arbitrations.

When agreements are reached through out of court methods, the terms must be recorded in legal language in a document known as a consent order, i.e. a court order made on terms decided by the parties, which is then sent to the court for approval. Only unusually will a judge query or refuse to endorse a consent order, if, for example, she/he discerns gender bias or a gross inequality. Court approval is required to make the agreement enforceable and because only a court can dismiss financial claims between spouses or make arrangements completely binding.

Returning to the case, known as S v S, the couple concerned reached agreement through family law arbitration and submitted their consent order to the court for approval. It would not be normal practice for the President to look at all consent orders reached following arbitration or to pronounce them binding in open court; however, in this case Sir James Munby took the opportunity to make some public observations as he approved the decision of the arbitrator and the subsequent consent order.

He reviewed the recent development of the law in relation to agreements between separated couples, highlighting the move towards respecting the autonomy of people to sort out their own affairs and the encouragement shown by the legislature for alternative forms of dispute resolution.

He then went on to give some pointers as to how agreements such as those reached through arbitration (and indeed other forms of non-court based resolution) should be treated by the courts in the future. In essence, he said, courts should uphold them. Where parties have voluntarily bound themselves to an arbitrator’s award by signing a contract to do so, then the court should not without compelling reason interfere with the award and subsequent consent order. Sir James described a signed agreement to be bound by an arbitration award as “a single magnetic factor of determinative importance” and went on to say, “in the absence of some very compelling countervailing factor(s), the arbitral award should be determinative of the order the court makes”.

He went on to be clear that an agreement reached through collaborative law and an award reached through arbitration should be offered the same streamlined process of judicial approval. This means that the role of the judge when checking an order placed before him or her is limited to checking the workability of the order and approving it, unless something leaps from the page to indicate something has gone awry in the arbitration or collaborative process.

In cases where one party is trying to back out of the award, or indeed any other agreement reached voluntarily, Sir James encouraged courts to take a robust approach to dealing with this.

As a caveat, Sir James pointed out that the court’s encouragement for and acceptance of family law arbitration and collaborative law is due to the application by these processes of the principles of English law. If other forms of dispute resolution are used, and a court is asked to approve an order which exhibits, e.g. gender discrimination, a judge will not be so ready to approve the documentation.

All of this is a hugely positive endorsement of alternative dispute resolution, and a commitment from the President to speed up the paperwork for couples who choose to resolve their disputes in this way.

If you would like to make an appointment to talk to us about how arbitration or collaborative law works as a way of sorting out a family dispute, please call Adam, Sue, Simon or Gail on 01223 443333.


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