THE BENEFITS OF ARBITRATION IN FAMILY LAW Suzanne Kingston
Suzanne is widely known for her expertise in all aspects of family work, in particular the resolution of complex financial issues for high net worth individuals. Suzanne's cases often have an international element and she has considerable experience in dealing with prenuptial agreements and cohabitation issues. As a member of the Children Panel, Suzanne has dealt with numerous cases involving complicated Children Act issues as well as both child abduction and adoption. She is an accredited Resolution mediator and has a thriving mediation practice having recently undertaken a number of referrals under the Court of Appeal mediation scheme.
The Institute of Family Law Arbitration (IFLA) launched the Financial Arbitration Scheme in April 2012. This enables couples (whether married or unmarried) to have financial disputes which they are unable to resolve by agreement (whether, for example, through mediation or negotiation) determined by a certified arbitrator outside of contested court proceedings.
Since the introduction of the scheme, more than 220 arbitrators have been trained and over 80 financial arbitrations have been concluded. Undoubtedly the success of the scheme has been helped by the ringing endorsements given by the Judiciary. In S v S [2014] EWHC 7 (Fam) the President of the Family Division, Sir James Munby, 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'. He indicated that it would only be in the rarest of cases that it would be appropriate for family judges to do anything other than to approve the arbitral award. Subsequently, on 24 November 2015, the President published the Guidance for Practitioners dealing with Arbitration – a sure sign that arbitration is here to stay and is seen by the judiciary as a pivotal way of resolving family disputes in many circumstances. The benefits of arbitration are clear: it is bespoke – the couple, their lawyers and the arbitrator agree on how the case will be handled and the details of the procedure. The proceedings themselves are less formal, the parties can choose their arbitrator and indeed often have direct access to that person via emails and conference calls. Crucially, confidentiality is assured unlike the Court process. Currently, there are two 'schools of thought' in relation to privacy in financial proceedings. Justice Holman is a proponent of openness and transparency. Indeed, in the case of Fields v Fields [2015] EWHC 1670 (Fam) he determined that the Court proceedings should be open and there should be no restrictions on reporting. He knew that the parties were distressed by the considerable attention the case received in the press and online but he stated that did not override the importance of transparency. On the other side, the privacy flag is waved by Justice Mostyn. In the case of SL v SL [2015] EWHC 2621 he said 'sunshine is said to be one of the best disinfectants' but 'financial remedy proceedings are quintessentially private business' and should be protected by the anonymity principle (see detailed article on court transparency). The debate continues… It will be interesting to see