FAMILY LAW REFORM: THE ROLE OF ARBITRATION

Adversarial family court process is bad: why?

There seems to be an assumption amongst many modern-thinking family lawyers, that all that is ‘adversarial’ in a court process is bad; and all that not is good. And what is ‘not’ adversarial is mostly defined in yet further negative terms (eg Resolution’s ‘keep it out of court’ campaign, mediation saves money. To crown this is the truly weird entirely negative concept ‘non-court dispute resolution’, conjured up – without any statutory foundation – at the threshold of the new ‘family court’. So the person whose family is breaking down – one of a couple, a child, a parent – have nothing positive save the fact of the curt process to hold onto. They are presented with no more than a default approach to the alternatives to family court resolution of parties’ disputes.

To connote adversarial processes as by definition to be avoided, as ‘bad’ is plainly jejune. It is those who operate the processes who may not do so benignly or the processes themselves which may be inefficient (and therefore expensive): that it a completely different point. Appreciation of those two factors is what drove SFLA in its early years; and which may have been lost sight of by Resolution and its negative spin on resolving disputes on family breakdown. Parties cannot always reach agreement; and some form of adjudication (arbitration, dispute resolution call it what you will) becomes essential.

Non-court dispute resolution: arbitration

Arbitration is included in ‘non-court dispute resolution’; and by some it is regarded as not ‘adversarial’ – yes really. For the resolution of family disputes it is a topic high on the agenda of family lawyers. Could it be the Holy Grail of the non-adversarialists; a positive means of non-court dispute resolution? I will try to avoid the obvious reply: that arbitration is the modern and Tory response to an issue: that reform can only occur in this area where the rich and slightly less rich are affected.

Unless you can pay for it (and perhaps for your own representation as well), you cannot take part in arbitration. To that extent it is economically regressive; and to his shame, as he watches his family court system totter amongst his idiosyncratic reforms, Sir James Munby P embraces arbitration. He fails to take up the democratic gauntlet on behalf of those who cannot afford to pay whom he should also – perhaps especially – represent.

Arbitration: how ‘adversarial’?

So: arbitration? Is it adversarial? Or, let’s face it, what is there about arbitration which is not adversarial?

I shall start from the assumption that all family arbitration is governed by Arbitration Act 1996, which it is. To my eye much of what the arbitration schemes under the 1996 Act embrace is derived – often word-for-word, as I read the Act – directly from common law adversarial processes (there is nothing new in that point, I am sure). The ‘general duty’ of an arbitration ‘tribunal’ (1996 Act s 33(1)) is that it ‘shall (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent’. ‘Putting [a] case’ and dealing with the case of your ‘opponent’, and of this being connoted with ‘fairness and impartiality’ is the meat and drink of an adversarial process; and none the worse for that, I believe, as a means of justly disposing of issues of fact and differences of opinion.

If it is properly prepared for, and properly case managed – and this is where parallel mediation can come in; pre-agreement of as many issues as possible before-hand – it can be done in a non-combatitive framework. Everyone has their say and they have confidence in the adjudicative process.

Of case management Arbitration Act s 34 goes on that ‘It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter’; and that such matters ‘include—

(c) whether any and if so what form of written statements of claim and defence are to be used, when these should be supplied and the extent to which such statements can be later amended;
(d) whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage;
(e) whether any and if so what questions should be put to and answered by the respective parties and when and in what form this should be done;
(f) whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;
(g) whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law;
(h) whether and to what extent there should be oral or written evidence or submissions.

Where parties cannot reach agreement

Much of s 34 comes from case management style rules in Civil Procedure Rules 1998 and Family Procedure Rules 2010. It is designed for the management of adversarial litigation (a new litigation concept in the 1990s pioneered by family lawyers, but hi-jacked by civilians). And there are ground-breaking references to the arbitrator being able to take an inquisitorial role (at (g)). In truth, arbitration provides an option, provided you, the party, can afford it; and to pay for legal representation as well. So I do not oppose arbitration in principle: far from it. It offers true law reformers an example of a way forward.

For, in terms of law reform, it is the fact that a number of the lawyers who now promote arbitration in their younger days – 20 years or so ago – were very strong in trying to improve the nationalised system we have had since King Alfred’s days (in varying forms) for dispute resolution: namely the courts. That lead, pioneered by then in-situ judges, lead to the ancillary relief ‘pilot scheme’, rolled out nationally in 2000. That was available for all comers, regardless of colour, creed, gender – or, and here’s the rub – of means. Sir Peter Singer, a forceful arbitration advocate, only finds (in terms of their assets) that ‘Mr & Mrs Average’ (I wonder how ‘average’ Sir Peter would regard as ‘average’?!) can afford arbitration. Arbitration is privatised litigation. It is none the worse for that (in a capitalist society), provided – like private medicine – that you can pay for it.

If all reforming lawyers (including some of those involved in the new arbitration schemes) put their – our – backs behind working to improve the court system and its rule of family law, we’d soon see a fair and democratic system developing once more. One system for the rich and ‘average’ only, is not what I’d want to see as the end of 45 years of family law reform (I take 1 January 1971 (introduction of DRA 1969 and MPPA 1970, which became MCA 1973) as my start date).

To learn from arbitration ideas

But is anything to be learned from arbitration and the system under Arbitration Act 1996? By all means there is. Why should not parties in the state approved court system agree their own formal court procedure for a final contested court order? Already they are permitted to agree a final consent order (with court’s approval)?

Any contested order procedure would have to enable the courts to comply with their parens patriae duties under MCA 1973 s 25 and CA 1989 Sch 1 (I think at this stage of money; bit the same principles could apply to children proceedings). Case management would be a more openly co-operative process (chaired by a district judge) and within the parameters of Family Procedure Rules 2010 rr 1.4 and 4.1. This would be applied for by means of a heavily abbreviated (as against Form E) financial statement.

Parties could be told by the court that private parallel mediation was always available. Preliminary issues could be dealt with, perhaps often in writing, by the case management judge. Parties could set up their own process to lead to final court adjudication (with off-the-peg procedural models for parties not familiar with the processes or without an experienced family (or any) lawyer). The court over-views the process – always; and it is a crown-appointed judge who finally adjudicates. For preference I believe any final adjudication should be by a judge who is not the same as the case management judge. But, that said, no family should ever be dealt with by more than two judges (save in cases of sickness, retirement, death or recusal).

And I do accept that nothing is said here of the role – the plight? – of the litigant in person. Their needs must be factored into any law reform processes of the types outlined above.

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