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.

Arbitral Awards: A Magnetic Factor of Determinative Importance – Yet Not to Be Rubber-Stamped?

The High Court’s decision in S v S [2014] EWHC 7 (Fam) (S) is the first to give judicial endorsement to the Institute of Family Law Arbitrators’ (IFLA) scheme for parties to use arbitration to resolve the financial consequences of marriage and civil partnership breakdown. The significance of the decision extends beyond the case itself. Sir James Munby P’s judgment is important in four respects: first, he guides courts as to the process to adopt when considering applications made in the context of arbitral awards; second, he makes critical suggestions for future procedural innovations and rule changes; third, he directs courts as to how to weigh the substantive content of arbitral awards against section 25 of the Matrimonial Causes Act 1973 when hearing applications for consent orders and attempts to resile from the arbitral award; fourth, he comments on autonomy as the underlying theoretical basis for this substantive approach to arbitral awards.

This paper is published in (2015) 37 Journal of Social Welfare and Family Law 99-101, and available here.

Law Society Gazette: Letter to Editor – ‘Final and binding’ awards in family law

Setting the record straight: family law arbitration is not binding

Dennis Sheridan’s article (13 March) on family law arbitration sets out the key benefits of the new IFLA scheme but risks being dangerously misleading in one respect, namely that ‘awards’ made under the scheme are ‘final and binding’.  More worryingly, he makes this claim in relating what an appointed IFLA scheme arbitrator said to clients in the early stages of proceedings.

Just because Article 13.3 of the IFLA scheme Rules describes the ‘award’ as ‘final and binding’ subject to limited grounds of challenge and appeal, does not make it so.  Indeed, Article 13.4 of the Rules recognises that it may be necessary for the parties to apply to the courts to get an order in the same or similar terms as the award/part thereof.

It is technically incorrect to say that these ‘awards’ are binding.  Trite as it is, jurisdiction to make final financial awards is the court’s alone.  Nuptial agreements are not binding, and arbitration is not a special case.  Section 81(1)(a) of the Arbitration Act 1996 makes clear that the court’s jurisdiction is unaffected here and s25 of the Matrimonial Causes Act 1973 applies.  Even if arbitrated awards were treated as akin to s34(1) MCA 1973 maintenance agreements, so as to withstand s81(1)(a) AA 1996, s81(1)(c) entitles a court to refuse to recognise and/or enforce an ‘award’ on public policy grounds.   Any case in which a judge would reach a different result under s25 than under the ‘award’ should satisfy s81(1)(c).

Second, even if a judge would be unlikely to override an arbitrated ‘award’, it is misleading to describe that factual reality with the legal terminology of bindingness.  We do not pretend that the agreement that forms the basis of a Consent Order is binding before the order is made, so why would we do so for arbitrated ‘awards’?  Talking about ‘awards’ that are unlikely to be overridden – ‘as good as binding’? – as ‘binding’ is liable to confuse the public.  Why risk litigants misunderstanding their own legal right to apply to court for a binding order?   Further, religiously-based arbitrators understand their limits; why risk the public misunderstanding the nature of religious tribunals’ work?  The current law is based on the concern that only the court can sufficiently protect the parties’ interests in these disputes, hence only it can make binding decisions.  If we no longer think this is the case, we need to have that debate, not pretend we have already had it.

Family law arbitration may have many benefits for the right type of parties in the right type of dispute.  But a ‘final and binding’ decision is not one of them.

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.