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President's practice guidance 'endorses family law arbitration scheme'

Family Court has an obligation ‘where the parties agree, to enable non-court dispute resolution to take place’

The President of the Family Division, Sir James Munby, has issued Practice Guidance concerning arbitration in the family court. The Guidance is concerned with the interface between the family court and arbitrations conducted in accordance with the provisions of the Arbitration Act 1996 where the parties to a post-relationship breakdown financial dispute have agreed to submit issues for decision by an arbitrator whose award is to be binding upon them.

Divorce solicitor and family law arbitrator, Tony Roe, of Berkshire-based Tony Roe Solicitors noted:

"Back in January last year, 2014, in S v S [2014] EWHC 7 (Fam) the President set the lights at green for family law arbitration when he endorsed the scheme. At the end of the judgment he said:

'Drafts of templates for such orders have been produced for consultation as part of the Family Orders Project being managed by Mostyn J. But alongside these innovations the need for procedural adaptation is becoming increasingly pressing. Whether such topics are most appropriately dealt with by rule changes (for example to the Family Procedure Rules 2010 and/or the Civil Procedure Rules 1998) or by the issue of Practice Directions or Practice Guidance is a matter for consideration."

"Almost two years on, we have that promised follow up.

"The short but comprehensive practice guidance deals with various issues including the stay of financial remedy proceedings already underway in the family court and how an arbitration award is to be turned in to a consent order. It comes with a suite of template orders. The President repeats what he said in S v S, namely that where the parties are putting the matter before the court by consent, it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order.

"He also adds that it may be more appropriate for some arbitration awards, eg relating to the Trusts of Land & Appointment of Trustees Act 1996, to be brought (if necessary) before a court which does not exercise family jurisdiction.

"This further endorsement of the family law arbitration scheme by the President was deliberately launched by him at the start of Dispute Resolution Week. He stresses that the Family Court has an obligation under FPR 3.3(1)(b) 'where the parties agree, to enable non-court dispute resolution to take place.'

"Family law arbitration offers speed, flexibility and confidentiality. Court delays are increasing, upping the cost of 'traditional' litigation.

"With the key launch of the practice guidance many more family lawyers will realise that family law arbitration is a very real option."