The IFLA and the IFLA Schemes are the results of collaboration between Resolution, the Family Law Bar Association (FLBA), The Chartered Institute of Arbitrators (CIArb) and the Centre for Child and Family Law Reform (CCFLR). The Schemes operate under the Institute of Family Law Arbitrators (IFLA), a not for profit company, the members of which are CIArb, Resolution and the FLBA. CCFLR is also represented on the Board. IFLA is chaired by Lord Falconer.
IFLA has developed its arbitration Schemes to enable parties to resolve family disputes more quickly, cheaply and in a more flexible and less formal setting than a courtroom.
June Venters is a Solicitor QC and Barrister at Law. She is also a Senior Status Family Mediator as well as a Children Arbitrator. She is an Accredited Law Society Children panel representative and an Accredited International Children Abduction lawyer. I qualified as a solicitor in 1984 and I sit as a Recorder in the Crown Court, Family Court and County Court. I have specialised in Criminal and Family Law throughout my entire career.
The principal benefits of arbitration are:
The parties define the scope of their arbitration. In many cases, they will want all their differences arbitrated. Alternatively, the arbitration may be limited to agreed issues, leaving room for further negotiation or application to the court. It is possible for the arbitration to be completed on paper, if the parties agree or the arbitrator decides this is the best approach, further reducing costs.
Arbitration resembles court proceedings. An arbitrator will produce a decision after hearing the evidence and each party’s arguments in support of their case. By contrast, a mediator helps a couple reach their own settlement through agreement.
Arbitration and mediation can complement each other.
The arbitrator may consider that mediation would benefit the couple and would then suggest this. Mediators can also recommend arbitration if mediation breaks down or if an agreement is reached in mediation on most but not all issues. It is, therefore, possible for a mediator to refer a specific part of a dispute to arbitration, in order to resolve a sticking point during the course of mediation.
Unlike court proceedings, arbitration can deal with a single issue.
Arbitrators under the Scheme are specialist and experienced family lawyers specially trained in family arbitration, many having judicial experience. They are subject to the disciplinary code and procedures of CIArb, the self-regulatory professional body for arbitrators.
The arbitration must be conducted in accordance with English Family Law, which makes the arbitrator’s decision enforceable. Decisions made in other forums which do not apply IFLA Rules (and in particular the requirement that only English law is applicable) do not have the same advantage.
Since the arbitration Award or Determination is based on the principles of English family law it is likely to be similar what a court might order and will be recognised and incorporated into a court order when required. IFLA arbitrations have the support of many senior judges.
The first step is to complete and submit an application: either a Form ARB1FS for the Financial Scheme or ARB1CS for the Children Scheme. The Forms record the agreement to arbitrate and acceptance of the Rules of the Scheme and must be signed by both parties or their legal representatives may sign on their behalf.
As an arbitrator, she will want to know that you and your children will be safe from harm when deciding any arrangements for your children. You will be asked to provide some background information and information on any concerns you have.
The parties can either nominate an IFLA arbitrator or invite IFLA to nominate the arbitrator. They can agree on a short-list but invite IFLA to select at random from the list.
Many arbitrators will at this stage suggest a meeting to discuss the nature of the arbitration. It is also an opportunity for prospective participants to meet the arbitrator before deciding whether to proceed with that arbitrator.
The Forms stipulate that the parties agree that the arbitrator’s decision will be final and binding and that, if necessary, they will apply for a court order to give effect to it.
After the appropriate Form is submitted to IFLA:
It is strongly recommended that every prospective participant should take legal advice before entering into an arbitration agreement (ARB1FS or ARB1CS) in order to understand the implications and effect of the arbitration process and of the Award or Determination. On signing the Form ARB1FS or ARB1CS parties are asked to confirm that they have had legal advice on the arbitration agreement.
Arbitration retains similarities with court proceedings so representation by a lawyer may be the most effective way to present a case and the legal arguments in support.
The arbitrator has wide-ranging powers to make decisions on any case management or substantive issues on which the parties cannot agree. In the absence of agreement, an arbitrator can, for example:
Fees are charged at a fixed daily rate for the arbitration and on a sliding scale for the preparation both before and after the arbitration which includes the reading of any paper work; the meeting with the parties [if arranged] and the writing of the judgment.
£3,500 per day
£2,500 per half day
£350 per hour. A fees estimate would be provided for the reading of paperwork in preparation once the volume is identified by the parties
£350 per hour for any meeting
£350 per hour for the writing of the Judgment [this would usually be between 4-8 hours].
The usual arrangement will be for the parties to pay the arbitrator’s fees and expenses (as well as IFLA’s fees and expenses) in equal shares. However, the arbitrator has a discretion under the Rules to order a party to pay more than an equal share (even up to the full amount) if that is appropriate because of the conduct of that party in relation to the arbitration.
These are the costs incurred by a party in engaging lawyers to prepare for and represent them in arbitration, as well as such costs of hiring a venue for a hearing. The usual arrangement will be for each party to pay their own legal costs, and not to make any payment towards the other party’s legal costs. The costs of a venue (and similar costs) will usually be shared equally. However, the arbitrator has discretion under the Rules to order a party to pay part or all of the legal or other costs of another party if that is appropriate because of the conduct of that party in relation to the arbitration.
At the conclusion of the arbitration, the arbitrator will issue an Award (financial) or a Determination (children). The decision it contains is the equivalent of a final judgment and is binding on the parties.
Under English family law, the parties cannot reach an agreement which excludes the power that the court has to make its own orders. However, it is highly likely that Courts will endorse Awards and Determinations made under the IFLA Schemes. In financial cases, the parties will need to apply to the court for an order in the same or similar terms as the Award or Determination.
The President of the Family Division, Sir James Munby, has recognised an IFLA arbitration Award in an important decided case which, it can safely be assumed, other judges will follow. In the course of his judgment, the President commended the quality of the IFLA Financial Scheme.
If you are considering arbitration or would like to arrange an arbitration, please do contact using the form below or ring 01737 229 610.