26 November 2018 - Events
In conversation with Suzanne Kingston, a key mover in the development of family law arbitration. First published in Resolution, The Review – Issue 194
When we first started discussing the prospect of arbitration for family law, the possibilities seemed immense but the practical reality a long way off. Since then, the landscape of family law has undergone a number of seismic shifts – most profoundly with the government’s fundamental curtailment of legal aid provision and the huge pressure now being placed on the court system by unsupported litigants in person. Alongside this, jurisprudence evolved to change the way the courts view party autonomy so that our clients’ right to make their own bargain, and to be held to it, is now a foundation of the approach to agreements. I believe it was these factors that combined to make the introduction of arbitration possible, not least because party autonomy is a key feature. Now, some six years after we launched the IFLA Scheme, and having being involved in training over 250 arbitrators over the two disciplines of financial and children arbitration, it is with great satisfaction that at the start of 2018 I am able to look back on a year in which, acting as an arbitrator in both financial and children proceedings, I have seen the potential of family law arbitration make a real difference in real lives.
Case study 1
This case concerns a couple in their early-to-mid 50s who have three children but only one in their minority (aged 15), the other two having attained university degrees. The parties had been married for 24 years and had separated in 2015. The parties had initiated the court process but had had an unsatisfactory experience which had caused them to lose confidence in litigation. They had attended a first appointment, to be told that there was no judge available.
Flexibility, accessibility and continuity
Within two days of accepting the appointment as arbitrator, we had agreed an initial timetable and I had conducted a preliminary hearing and provided directions in relation to disclosure and a timeframe for the provision and exchange of witness statements. Flowing from this disclosure the applicant wife had some further questions and we were able to schedule an additional hearing, to take place within 48 hours of the request, to determine whether her additional questions should be answered. I heard submissions from both parties’ representatives on the additional questions and determined those to which answer had to be provided.
The timeframe for initiating the arbitration, commencing the exchange of evidence and then scheduling the additional hearing, demonstrates the responsiveness and flexibility of the process. Even when the court system is working well, the timeframe is relatively generous. These parties were ready to proceed and significant momentum for comprehensive disclosure was achieved through the ability of the process to respond to the parties’ readiness. Throughout this time the parties’ representatives were able to contact me easily and directly and I was able to be involved as needed throughout, offering accessibility and continuity.
Consensus where possible
Arbitration itself requires a fundamental agreement to step outside the formal court process and, in that way, the parties already have some consensus. This underlying basis can be helpful in assisting the parties to agree what they can, and only fight over what they cannot agree about – limiting the issues. Here I was able to encourage the parties to come up with a list of points of agreement going into the final hearing, which were:
marital home will be sold;
- no order as to costs and parties to pay arbitrator’s fees in equal shares;
- wife needed a mortgage-free property for her and children;
- wife to retrain to maximise her earning capacity;
- child maintenance agreed, as were the contents.
Therefore, the only issue, although a rather significant one, going into the final hearing was division of equity in the marital home and the level and duration of periodical payments to be made.
Formal approach with the gravitas of court room hearing
Arbitration can offer the best aspects of the court system – and avoid the worst. By that I mean we were able to ensure that the meeting room booked for the arbitration was set up like a quasi-court room, with the formality required to reflect the gravity and seriousness of the proceedings. The evidence was to be given at a separate table, and the arbitrator presided from a desk at the front of the room. There was appropriate space for each parties’ representatives and themselves.
We were also able to avoid the worst parts of our over-stretched court system by ensuring that both parties and their representatives had individual break out/meeting rooms. The scenario where very anxious clients are forced to stand in corridors awaiting the announcement of their case number was not on the agenda – there was no standing around in corridors waiting to be called, nor any need to “bagsy” a room.
We were able to agree a timeframe for the day, meaning that the clients and advisers had clear boundaries to work within. This included ensuring that each party had equal time to make their submissions and address questions in the witness box.
Both parties gave evidence in chief by their witness statements and were cross-examined at the hearing. It was important to these parties that they were given the opportunity to answer the points that had been raised by their former spouse’s team and to see the robustness of the process in action. Counsel acting for each party chose exactly the right tone for the setting, reinforcing the gravity of the proceedings whilst also acknowledging the slightly less formal approach.
Timing and control are huge issues for couples enduring financial proceedings flowing from a divorce. Within 28 days I delivered the award, which included an explanation and consideration of the section 25 factors, set out cases referred by counsel, confirmed that this case would be determined on needs and that an unequal division of the net proceeds of sale for the family home would be appropriate to meet the applicant’s wife’s capital housing needs. Spousal periodical payments were ordered based on the net effect and I was able to take account of a point on indexation submitted after the hearing, as it had been forgotten at the time. The 12-page award was fully accepted by both parties.
Subsequently solicitors for both parties provided positive references regarding their experience.
Case study 2
This case concerned a complex myriad of disputes arising over almost every aspect of the day-to-day logistical care of two children. This included disputes concerning the arrangements for contact, holiday contact, weekend contact, picking up and collecting, music lessons, and sports clubs.
The parties were entrenched in a cycle of litigation and had participated in numerous court hearings which had not been able to resolve the issues between them. Although the court system was not working for them, they didn’t jump straight into arbitration but considered the pros and cons for a while before committing. I think this was beneficial as when they did then sign up to the ARBCS1, it was a demonstration of real commitment on both sides. This was also reflected in the fact that once the process commenced, the parties were keen for the case to proceed with some speed.
Speed and flexibility
A bundle was agreed, safeguarding and disclosure requirements were met and progress was quickly made towards a hearing where matters could be aired. One of the issues that arose, bearing in mind the history of this case, was the extent to which I should see previous inter-partes correspondence. This was resolved by a direction that I would see an agreed bundle of correspondence.
The hearing took place over a full day. Again, we agreed timings for the day as well as to split equally the time apportioned to each party for their evidence and submissions. Refreshments, lunch and rooms were all catered for and the main room where the hearing took place was set up again in quasi-court room style.
I do have to mention the excellent approach of all advisers in the process. Arbitration is a serious process that creates a binding outcome through the arbitral award and the manner in which the case is heard and decided is critical. It was also critical in this case that both parties had the opportunity to give evidence and be heard, by the arbitrator and by the other side. This was sensitively and appropriately achieved by all involved.
The parties requested an expedited decision, to be delivered within seven days of the hearing. This was achieved and again the feedback from all involved has been overwhelmingly positive.
As the arbitrator I am in the privileged position of being able to assist in determining the whole range of issues which, in my view, when resolved well and with dignity, assist the couple dramatically. I am confident that in a whole range of cases arbitration is the best way forward and I really hope that it will continue to go from strength to strength.
An interview with Suzanne
How did arbitration in the family law context come to be conceived?
SK – 15 years ago, during a meeting between myself, Lord Justice Thorpe, David Hodson and some other family lawyers, we first discussed the concept of family law arbitration as a project. We canvassed whether statutory change in terms of the introduction of a legal framework might be achievable and, if not, what might be possible in the meantime.
How did these discussions then turn into the reality of the family arbitration scheme?
SK – In recent years there’s been a huge push by the government to promote alternative methods of dispute resolution, largely as a means of relieving pressure on the court system. In the context of this and the growing recognition of party autonomy in case law, a general consensus developed that the time was right for family arbitration. It was agreed that we should start working on the rules and start to consider the training that could be given to arbitrators in the absence of any statutory change, but in the hope and aspiration that the courts and the judiciary in particular, would support this new initiative.
And what was your role in the launch of family arbitration?
SK – In 2010 I applied for the role and was appointed by the Chartered Institute of Arbitrators as co-trainer alongside Jonathan Tecks (a highly experienced commercial arbitrator and mediator), to write the family law arbitration course and to train it. At this stage, it was envisaged that my role would be limited to perhaps one training course a year. Exceeding this expectation considerably, I have now trained over 250 arbitrators since the launch of the financial scheme in addition to being heavily involved in development of the rules with the Institute for Family Law Arbitration, IFLA.
What was behind the decision to launch the financial scheme first?
SK – It was vital to get the financial scheme established and for it to be tested quite robustly, for example as to enforcement and also alongside the court structures, before dealing with the rather more sensitive issues surrounding children arbitration. I think this has worked really well, and the financial scheme is now embedded within the landscape of family law and children arbitration is well on its way.
And what was it like to teach the first course?
SK – It was a real buzz and I absolutely loved it. However, at the time we embarked on training the first course there was of course no practical experience of how family arbitration was going to work and, in particular, what the interplay was going to be between the court and the Scheme. In addition to that, the calibre of those first 20 (as has been the case since then), made up of retired judges, QCs and solicitor colleagues with many years’ experience, was exciting. At the end of that course I’d taken copious notes and identified a long list of 24 questions which Jonathan Tecks and I worked through in the weeks following, to refine our teaching and indeed discuss matters with the Rules Committee. Also, on a lighter note, I can also remember James Pirrie taking a photograph of the first 20 people on the course and that’s a lovely memory.
On a personal level, do you prefer teaching financial or children arbitration?
SK – No, I think they’re equally interesting. In terms of my personal experience, it has been necessary to give quite in-depth consideration of the safeguarding issues, which reminded me of a time in the early days of my career working on a lot of child protection work for Oxfordshire CC – everything came flooding back to me.
What do you think are the qualities that make a good arbitrator? And are they different as between finances and children?
SK – The fact that an arbitrator has a very good understanding of the law and the arbitration rules, is fundamental and a given. So, in addition to those qualities, I think predominantly arbitration works well when an arbitrator is able to be very clear in the way they speak and write so that the parties are fully involved in what is going on. This, in particular, is in recognition that there is party autonomy at the core of arbitration. The arbitrator needs to be able to work well, not just with the advocates but with the parties themselves.
With that in mind, do you have any practical tips that would assist with conducting an arbitration?
SK – From my practical experience as arbitrator I think it’s really important for solicitors to arrange a pre-commitment conference call with the arbitrator. It provides an opportunity for both parties’ lawyers to focus on the nuances of the particular case, because every arbitration is of course unique and approached in a bespoke way. At this stage I would also recommend that there is a discussion to cross-check the scope of the matter and make sure that all aspects of the case are within the boundaries of the Scheme rules. This sort of preparation is key to limiting any potential future difficulties that might arise. In addition, it also enables the arbitration timetable to be set, which for most people is really helpful so that they understand when their final arbitration hearing is going to be.
In terms of your own personal role, clearly you have multiple roles: as trainer, solicitor and arbitrator. Which do you enjoy most?
SK – I really love the variety of the different aspects of my career, it’s been wonderful to be involved in spearheading the IFLA Scheme, and to be involved in training all the arbitrators so far. I get huge satisfaction from clients achieving great outcomes from arbitration and it’s been excellent to conduct arbitrations in my role as arbitrator. This is not forgetting my day job as a solicitor, which is brilliant.
Do you think that arbitration is now on the agenda in most of your cases (that are suitable)?
SK – There has been quite a bit of sea change in so far as people are getting more and more used to arbitration.
Of course there was appropriate caution at first, but now the numbers of completed arbitrations for both schemes are approaching 300, and we have the endorsement from judges of the family court, it is absolutely right that people are becoming much more confident about referring into arbitration.
In terms of the future, what’s in store for arbitration?
SK – I am hopeful that as time goes on family arbitration will become the default position in certain cases. It seems to me that for cases where confidentiality is required then arbitration is a great way forward. Another example could be in the circumstances of a failed FDR where the wait for final hearing could be a further six months, then the timeframe for arbitration is really offering client’s an excellent alternative. Looking at children matters, timing can be critical and to know that rather than waiting to get into court it is possible to arbitrate the issue and receive a way forward quickly, perhaps re-establishing contact, these advantages can be pivotal for clients’ lives.