To answer the question posed above I looked at the website of the Institute of Family Law Arbitrators (IFLA). Arbitration is described as a form of dispute resolution where the parties enter into an agreement in which they appoint a suitably qualified person (an Arbitrator) to adjudicate a dispute and make an award – as an alternative to issuing court proceedings in the usual way and having a final order made by a Judge.
Thus it could be more simply described as a process in which parties appoint a private Judge to make an award to which all intents and purposes is binding upon them.
The scheme launched by the Institute of Family Law Arbitrators is one in which divorcing couples or other persons with a family dispute can agreed to appoint their own Arbitrator or have the IFLA select one for them from a Panel of approved Arbitrators. The subject of Arbitration can cover financial disputes, inheritance claims, financial claims after a foreign divorce, child maintenance and cohabiting couples property disputes.
The IFLA say that the Arbitration scheme was developed to ensure that financial disputes are concluded more quickly and cheaply and in a less formal setting than in a Court.
What I particularly like about Family Arbitration as it is promoted by the IFLA is that the relevant procedure can be developed in accordance with the parties requirements and the parties can even put forward proposals themselves as to what the procedure should be. I am encouraged that legal advice is strongly recommended in order to ensure that the parties understand the implications and effect of arbitration and of the final award.
What are the powers of an Arbitrator?
The IFLA website says that an Arbitrator can:
- Rule over what matters are included in the scope of arbitration.
- Determine all case Management issues concerning evidence, disclosure, written documentation, make interim orders, give directions, appoint an expert.
- At the conclusion of this process the Arbitrators will issue a final Judgment which will be binding between the parties.
How is this possible in a Family Context?
Family Law does automatically sanction contracts/agreements made by Husbands and Wives. Therefore if parties reach an agreement in a family context it has to be court approved to be binding (save for unmarried couples property agreements.) Therefore, whatever Judgment an Arbitrator makes, in a matrimonial context, will still require court approval to be binding and enforceable.
However, Arbitration is still a vey serious process which is gaining court approval. Very recently Mr Justice Baker of the High Court in the case of AI v MT  EWHC 100 (Fam) converted an Arbitration award made by a Jewish court in the New York Beth Din, into an English court order. Mr Justice Baker considered that the resolution of the issues was in accordance with the Family Procedure Rules, although he had some concerns about the delay in the process, he found that the agreement was overall fair and unobjectionable. In the case of W –v N (TOLATA Proceedings; anonymity)  Mr Justice Moylan made very favourable comments about arbitration.
Further, if we apply the courts general approach to agreements made within a matrimonial context, such as pre-nuptial and post-nuptial agreements, a final Arbitration award is likely to be extremely difficult to avoid in the event that one party is unhappy with the outcome, and wishes to contest the matter in the courts.
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