Family arbitration needs a clear legal framework

by Carl Gardner on February 23, 2012

I’ve written a piece for the Guardian Law website today, about yesterday’s launch, by the new Institute of Family Law Arbitrators, of a scheme of binding family law arbitration. The scheme itself doesn’t worry me: I’m sure the IFLA’s arbitrators are all more than competent family lawyers who’ll do a good job. I am a bit worried, though, about the fact that, apparently, someone can just decide to start a service like this on their own initiative.

If family lawyers can just decide to set up a scheme like this and expect to make arbitration awards binding, why can’t others set up their own schemes? What’s to stop a religious body doing so, and deciding cases according to religious principles, such as sharia? … I doubt the Archbishop of Canterbury or Lord Phillips, the current president of the supreme court, would be alarmed at the prospect. Those of us concerned about religious threats to equality under the law may feel differently.

I do think this is a suitable case for some sort of statutory control – and that MPs should do something about it.

You can read the whole piece here.

{ 4 comments… read them below or add one }

1 Jonathan James February 23, 2012 at 14:03

I confess that I’m still struggling to see the benefit of an arbitration service. In the commercial environment, the major advantage is the parties to a dispute in some specialist area can appoint some similar specialist in whom they both have confidence. Where some abstruse or technical issue is the root of the problem, this makes sense.

However, in family law, this advantage is very much reduced. Financial proceedings on the breakdown of a marriage are sadly commonplace. Judges at different levels routinely encounter them and decide them. I just don’t see how a formal arbitration, with the full and proper disclosure which will be needed, saves any money or introduces any additional expertise. I know few of the first tranche of arbitrators but those that I do know, while skilled practitioners, cannot really be said to be more technically skilled than, for example, the High Court Family Division judges who would otherwise be dealing with such cases.

2 David S February 23, 2012 at 15:37

Jonathan, in my experience the major advantage in the commercial environment is the confidentiality. Commercial parties don’t like their exposing their dirty laundry in public. So they are willing to choose a second-rate (compared to the Courts) and more expensive (to them) service to avoid this.

3 Lucy February 23, 2012 at 19:43

My interest in all this is not so much around religious arbitration, but because an arbitration organisation have recently put themselves forwards for arbitrating disputes about incapacity and deprivation of liberty:

It’s a bit odd really, as the DoLS come with legal aid (hence resources aren’t an issue for lay parties), and the Court of Protection offers plenty of confidentiality! More, potentially, than arbitration would since there are reporting restrictions on third parties as well. I’m unclear that the arbitration award in this field could be binding. I’m a bit troubled by the lack of clarity as to the limits of arbitration, and concerned about parties getting involved in it without clearer legal guidance on this.

4 Nicola Loughray February 25, 2012 at 02:31

Family lawyers are quite the one stop shop these days, offerings include litigation, mediation, collaboration, and now arbitration. Its called diversification and it is what all clever businesses do to stay ahead of the game. Lawyers can just decide to start a service like this on their own initiative, because they are out to make money.

Having been a part of the litigation debacle – the merry ride to the courtroom steps, where lawyers suddenly find the skills to do the job they were hired to do years before, this is just another method to engage clients, granted, its a clever one.

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