Family Law Arbitration: A Comparative Analysis of German and English Law and Practice

Abstract

INTRODUCTION Especially in family law, long, contradictory proceedings present an exceptional financial, as well as emotional, challenge for the parties. As a result, alternative dispute resolution mechanisms have gained in importance. In the family law context, mediation is probably the most common method of resolving differences arsing upon separation out of court. Arbitration, however, is not very oft en associated with family disputes, but seems rather more familiar in commercial and other fields of law. Nevertheless, in some jurisdictions, family law arbitration has either already been or is planned to be implemented into family law practice. Special emphasis must be put on the American Uniform Family Law Arbitration Act of 2016, which aims to harmonise the regulatory framework of family law arbitration in the United States and was already adopted by the states of Arizona and Hawaii in 2017 and by the state of North Dakota in 2019. Likewise in England and Wales there have been recent developments in this regard. In 2012, the Institute of Family Arbitrators (IFLA) launched its first scheme under which family disputes can be resolved by means of arbitration. But what does arbitration contribute to family law alternative dispute resolution? What is generally perceived to be its advantages and disadvantages? The potential advantage of arbitration as an alternative to conventional court proceedings is usually seen in the selection of the decision-maker. The parties themselves can, with their lawyer's assistance if they have one, choose their arbitrator, whereas in court the judge is assigned to the case. The chosen arbitrator will deal with the case from start to finish, while in court (at least for example in England and Wales), different judges may be involved in different stages of the case. It is oft en said that the arbitrator has more time to prepare the case than a judge and manages the case in a reliable way. Further, it is appreciated that the parties can create a convenient forum for their hearing by selecting a pleasant venue and a suitable day and time. This flexibility of timing speeds up the process and also allows a better prediction as to when the case will be terminated. Arbitration can therefore be the more efficient way of resolving a conflict. Moreover, the parties can determine the issues to be arbitrated, the form of procedure and the order of dispute resolution.