10 December 2018 - Article
The Financial Remedies Working Group (FRWG) was formed in June 2014 and is chaired by Nicholas Mostyn J and Stephen Cobb J. It consists of members of the Judiciary, Practitioners and Court Officers and was set up “to explore ways of improving the accessibility of the system for litigants in person and to identify ways of further improving good practice in financial remedy cases…confined to matters of practice and procedure”. The FRWG has just released its first report which deals with a whole range of issues highlighting in particular that the current procedures for financial matters seem to work well and suggesting a few reforms. In this blog I am concentrating on the way in which arbitration is considered in the report. The report references the case of S v S  EWHC 7 (Fam) — in my view a groundbreaking decision in which the President of the Family Division provided the strongest judicial support for use of family arbitration and paved the way for it to take centre stage in resolving relationship breakdowns. He made it clear that in the absence of any compelling countervailing factors, arbitral awards would be capable of being the “single magnetic factor of determinative importance”. One of the main concerns about arbitration has always been the fact that it is not possible to oust the jurisdiction of the court in financial divorce cases. As a consequence, even if the parties received an adjudication via arbitration, it is still necessary to have that made into a Court Oder. The FRWG have considered this and propose that the Court Order should contain recitals which make it clear that the case has been resolved in arbitration and the Court Order can then be lodged to take advantage of the accelerated procedure. It is clear from the report that the FRWG fully endorse the approach in S v S which suggests that it will only be in the rarest of cases that the Judge would do anything other than approve the Order. Another concern has been addressed. Of course, one of the main benefits of going to arbitration is that confidentiality is assured. It would therefore seem unfortunate in obtaining a Court Order that could be eroded. As a consequence, the FRWG have come up with a proposal to ensure confidentiality of the award. They suggest that the document should be lodged in a sealed envelope clearly marked with the name and number of the case and the words “Arbitration Award: Confidential”. This seems a practical and pragmatic solution to one of the main issues highlighted by practitioners. The FRWG have also considered how to deal with the situation if one of the parties seeks to resile from the arbitral award. They highlight the view expressed in S v S concerning the likely attitude adopted by the court in such a case “the court will no doubt adopt an appropriately robust approach, both to the procedure it adopts in dealing with such a challenge and the test it applies in deciding the outcome”. Finally, as set out in the Arbitration Act 1996 Section 67 to 71, there are various ways of challenging arbitration i.e. appealing the award. To date, it has not been clear from a procedural point of view how any such appeals would be dealt with. The FRWG suggests that the appropriate tribunal is heard by a High Court Judge of the Family Division. Of course, arbitration is still a relatively new family law process having been launched in England in September 2011. There are bound to be integration issues but in my view the President's remarks in S v S together with the initial report of the FRWG go a long way to addressing them. The number of cases going to arbitration are increasing month on month and it really now should be seen as a sensible alternative to court in a range of family law disputes.