By Suzanne Kingston, Partner, Withers

On 22 February 2012 a new arbitration scheme was launched. The IFLA (Institute of Family Law Arbitrators) Scheme is the result of a 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 whole issue of family law arbitration has been under consideration for about the last decade and during that time a number of family lawyers, arbitrators and judges have worked tirelessly to assist in the formulation of the scheme and its rules.

As from September 2011, 40 arbitrators are on the IFLA panel.

It is therefore now possible for a couple to enter into an agreement to appoint an arbitrator to adjudicate their dispute and make an award. The family law areas that will be covered are financial issues but not the status of the relationship itself (divorce) or children matters.

Arbitration can be seen as a new form of alternative dispute resolution. It will take pressure off the court system by enabling couples to appoint their own chosen arbitrator to deal with their case in an expedited way. There are a significant pool of arbitrators to choose from including former judges, QCs, barristers and solicitors. Once chosen, the arbitrator will stay with the case and conduct the entire arbitration to the imposition of the award.

It is significant that the arbitral process is entirely confidential by its nature and this is reflected in the rules. Further, the arbitration scope can be determined by the parties and so it would be possible for an arbitrator to deal with one discreet issue rather than being appointed to deal with the entire case. This shows the flexibility of the scheme and provides significant benefits to the parties.

The scheme has received a fair amount of publicity recently and most family lawyers know of its existence.  They will be able to help their clients in signing up to arbitration if that is the appropriate process option for them.  In agreeing to go for arbitration, the parties agree that the arbitrator’s decision will be final and binding and if necessary that they will apply to the court for an order to give effect to an award.  Indeed, the scheme has the support of many senior judges and other practitioners of English family law.  Although currently family law does not permit parties to make their own arrangements for financial and/or property issues on divorce or separation simply by agreement, without the possibility of court review, it is expected that the courts will endorse the awards made under the scheme.

The arbitration scheme is in line with the government’s current thinking in respect of alternative dispute resolution.  As from April last year, couples need to consider attending a MIAM (mediation, information and assessment meeting) before being in a position to issue a court case.  It is hoped that now as well as considering mediation and collaborative law, arbitration will be on the radar and will be seriously considered as an alternative to court.

The IFLA scheme differs substantially from arrangements made through religious bodies including Sharia Councils.  First, the scheme is developed and regulated by IFLA, and not for profit company.  Arbitrators under the scheme will be subject to the disciplinary code and procedures of the CIArb, the self regulatory professional body for arbitrators. The IFLA panel of arbitrators consists of specialists and experienced family lawyers trained in family arbitration, many having judicial experience. The arbitration is conducted only in accordance with English family law, thus facilitating enforcement by the courts if necessary.

Posted in Articles