Brexit, non-court dispute resolution, and family justice

As representatives from each legal field put forward their most pressing concerns for the Government’s consideration in responding to Brexit, family lawyers have principally focused on matters relating to cross-border children (parental responsibility), divorce, and finance disputes. Consideration of the consequences for non-court dispute resolution (N-CDR) has been relatively absent.

Perhaps this is because of the difference in nature between Regulations and Directives. Regulations govern the three substantive issues that have been the subject of most discussion, namely the revised Brussels II Regulation (Council Regulation (EC) No 2201/2003) (‘Brussels IIa’) and the Maintenance Regulation (Council Regulation (EC) No 4/2009). In relation to N-CDR in the familial context, however, it is the Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters (the ‘Mediation Directive’) that is centre stage. Whilst Regulations are directly applicable in Member States, Directives state objectives for Member States to transpose into national law. It is for Member States to choose the most appropriate form for any implementing national legislation. Or perhaps, relatedly, the lack of attention may also be due to a belief that the Mediation Directive, as the sole piece of applicable EU law on N-CDR and with the status of a Directive, is of limited practical significance in the UK so that little of consequence in this respect will flow from Brexit. Whilst any discussion is necessarily speculative, the following analysis suggests that N-CDR may be one – perhaps, the only – significant area of family law that may benefit from Brexit.

There are three respects in which the potential impact on N-CDR is distinctive. First, in the shorter term at least, the uncertainty created by Brexit may be more likely to increase the use of N-CDR as a means of achieving certainty, whether of process, outcome, or both. Secondly, in the longer term, the available space for, and drivers towards N-CDR are at least in part consequential upon the rules that apply to determine the appropriate forum or jurisdiction. This is particularly so in relation to the future of lis pendens, as adopted in Art 19 of Brussels IIa. Thirdly, whilst the impact on the substantive matters of divorce, parental responsibility, and maintenance necessarily relates to ‘cross-border’ disputes, there may be significant consequences for N-CDR domestically, not least in terms of the attitude toward its use. For this reason, Brexit may have more impact than one might expect on the work of those family solicitors, arbitrators, and mediators whose practice does not tend to have any international elements. In what follows, I will focus on mediation and arbitration, though implications for private ordering via nuptial agreements and negotiations between lawyers will also be briefly considered.

This article will be published in the October issue of (2017) Family Law.  A pre-editing version of the article is available here.

Arbitration in Financial Dispute Resolution: The Final Step to Reconstructing the Default(s) and Exception(s)?

In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties’ financial disputes. I explain that family arbitration may be more successful than other forms of private ordering and final court hearings in enabling certain types of parties to resolve certain types of disputes. Given that lawyer-led negotiations remain the most common form of out-of-court resolution, however, family arbitration’s impact may not be numerically significant. But family arbitration may be much more important in normative terms. Together with the transformation in approach to nuptial agreements, we may soon reach the position where it is no longer accurate to say that we are bargaining in the shadow of the default regime – the factual default of private ordering may become the autonomy-based normative default. I question whether this is a desirable step for family law, at least before we have resolved the underlying policy debate.

This paper is published in (2013) 35: 1 Journal of Social Welfare and Family Law 115-138, and available here.