Abstract
Until recently few jurisdictions have allowed arbitration of family law disputes, considering such arbitration to be contrary to public policy. But policies favouring private ordering, combined with pressures on family courts have encouraged reconsideration of the policy issues. This is notably true in common law jurisdictions. Similar developments in civil law jurisdictions are inhibited by the wording of national civil codes. Differences in substantive laws and in legal institutions also contribute to diverse assessments of the utility of arbitration: the role of the civil law notary in drawing up and dissolving a matrimonial property regime may be influential in this respect, while competitors to arbitration also include mediation, private judging, and the use of special masters and parenting co-ordinators. Where arbitration has been promoted, its scope has been limited to the financial consequences of divorce in some jurisdictions, while in others it extends also to child arrangements. Policy concerns are addressed through the development of enhanced protection for the parties to arbitration as compared to commercial cases, whether through case law or legislation. Key areas in which this has occurred include: the permissibility of an arbitration (as opposed to a submission) agreement; availability of an appeal or the intensity of review of an award; specification of the qualifications for arbitrators; and specific measures for the protection of children.
Highlights
According to Part 3.3 of the Family Procedure Rules applicable in England and Wales ‘[t]he court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate’
Differences in substantive laws and in legal institutions contribute to diverse assessments of the utility of arbitration: the role of the civil law notary in drawing up and dissolving a matrimonial property regime may be influential in this respect, while competitors to arbitration include mediation, private judging, and the use of special masters and parenting co-ordinators
SIMILAR CONCERNS: DIFFERENT PATHWAYS Any full comparison of family law dispute resolution would have to extend into differences in substantive law, which may reduce the incidents of disputes, and into
Summary
According to Part 3.3 of the Family Procedure Rules applicable in England and Wales ‘[t]he court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate’. One such form of dispute resolution is arbitration. An Institute of Family Law Arbitration (IFLA) was established in England in 2012 with a view to promoting arbitration of family law disputes and providing a framework within which such arbitration could take place under the Arbitration Act 1996. The article does not extend to out of court dispute resolution in the context of personal, religious, or customary laws. Two themes are investigated: first, the factors that make arbitration a stronger or weaker competitor among other dispute resolution services, and second, the extent to which the general framework for arbitration has been, or is being, modified in the family dispute resolution context to adapt it to the specific nature of such disputes
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