Arbitration given green light by family courts

The President of the Family Division, Sir James Mumby, has delivered judgement approving a financial settlement award made through arbitration.

Arbitration in Family proceedings was launched in 2012 with the aim of providing a cost-effective alternative to court proceedings to resolve family disputes.

The case of S v S [2014] EWHC 7 (Fam) is the first case where the family court has publicly confirmed an arbitration award. Although the President did not comment on the specifics of the award before him, he took the opportunity to provide commentary on the principals of arbitration and the court’s approach.

He commented on the “increasing emphasis on autonomy” of the parties in family proceedings, and highlighted how the court can limit the ambit of the issues to be considered at a court hearing, with arbitration being a suitable alternative to address ancillary issues (if not the whole of the process).

Sir James Mumby comments that that the judge would need to check that the consent order gave effect to the arbitral award and that, subject to this, the judge’s role would be straightforward. He says that the combination of “(a) the fact that the parties have agreed to be bound by the arbitral award, (b) the fact of the arbitral award… and (c) the fact that the parties are putting the matter before the court by consent, means that it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order.”

Before this week, there was some uncertainty as to the treatment of such awards by the court and this cements firstly the ability to successfully convert an award into an order that can be approved by the court, and secondly, by implication, the enforceability of an arbitration award through the court system in the event of non-compliance by one party to the award.

However, as the President notes, this is still very much a work in progress, and the Family court needs to establish recognised procedures to accommodate the arbitration process, to include dealing expeditiously with both applications to halt financial proceedings to allow arbitration to take place and enforcement proceedings following the making of the award.

I represented a party to one of the first family arbitrations in the country following the launch in 2012, and the award was subsequently approved by the court. Although arbitration hasn’t perhaps taken off at the speed that was originally hoped, it is another viable alternative option available to parties to help keep family disputes out of the court arena.

A version of this article was first published on http://www.tltsolicitors.com in January 2014.