London New York Geneva Arbitration Current Scheme in England and Wales Greenwich Hong Kong The Evolution from small beginnings to now. Milan Suzanne Kingston Family Partner New Haven Withers LLP 14 March 2015
The evolution of arbitration
Quick re-cap A form of DR Ends in ADJUDICATION Does not cover Status of the relationship Children Insolvency Third party intervention unless by agreement Therefore screening issues addressed later Parties agree to be bound by the decision of the arbitrator
Why now? Resolution of family disputes at crisis point Courts cannot cope with the volume of cases Government has attempted to divert suitable cases away from the court system to DR Judicial support for arbitration and encouragement from the Financial Remedies Working Group Issues regarding transparency in court cases?
Current Stats New starts Number of arbitrators trained Retired judges/qcs/junior barristers/solicitors
Judicial encouragement of arbitration Sir Hugh Bennett: In my estimation, the advantages so outweigh what are said, very inaccurately, to be disadvantages, that I confidently predict that within the near future family finance arbitration will complement the court system just as private medicine complements the National Health Service. Mostyn J in W v M (TOLATA proceedings) Anonymity [2012] EWHC 1679 (FAM) Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement
Endorsement through FPR 2010 The Family Procedure Rules 2010 incorporated for the first time into family proceedings an overriding objective to deal with a case justly, meaning, inter alia, ensuring that it is dealt with expeditiously and fairly, in ways that are proportionate with the nature, importance and complexity of the issues, and saving expense Under rule 1.4, the court is under an obligation to further the overriding objective by actively managing cases including encouraging the parties to use an alternative dispute resolution ( ADR ) procedure if the court considers that appropriate and facilitating the use of such procedure Part 3 of the Rules sets out the court s powers to encourage and facilitate the use of ADR and provides inter alia that the court may adjourn the proceedings at any stage for such specified period as it considers appropriate to enable ADR to take place
S v S [2014] EWHC 7 Munby J Endorsement of family arbitration Strongest judicial support Paves the way for arbitration to take centre stage
Guidance given Magnetic factor All forms of DR are now firmly established as a means of resolving financial disputes on relationship breakdown Endorsement of the approach in S v P [2008] 2 FLR 2040
Then came.the Financial Remedies Working Group Formed June 2014 First report July 2014 Chaired by Nick Mostyn J and Stephen Cobb J
Main findings of FRWG Endorses approach by President in S v S Makes procedure clear for obtaining a Consent Order after arbitration Streamlined procedure Recitals show adjudication via arbitration Confidentiality addressed Award lodged but in sealed envelope clearly marked Arbitration Award: Confidential Procedure for situation where a party seeks to resile from arbitral award Notice to show cause procedure Appeals High Court Judge or Family Division Judge
Talking of appeals Grounds Lack of substantive jurisdiction (section 67 AA) Serious irregularity and substantial injustice as a consequence (section 68) Appeal on a point of law, not fact (section 69)
Benefits for your clients Parties select decision maker and continuity of decision maker Flexibility Control and pacing less updating and quicker so fewer costs in interim position Confidentiality Informality Possibility of dealing with discrete issues Speed (average length for contested proceedings = 435 days) Parties can elect to use Calderbank Rules
Legal basis Arbitration Act 1996 IFLA Rules (in pack) Discussion and negotiation with parties
Procedure Article 10 IFLA Rules general procedure Article 12 IFLA Rules family procedure Flexibility of procedure key documents only?
Your role advising in Arbitration Explaining how arbitration will work Advising on the background Assisting in selecting the arbitrator Screening Delineation between finances and children Third party involvement e.g. trustees/companies/co-owners of property Considering the issues in dispute Is this a case for informal fast track or full procedure Advising on appropriate directions
Your role.continued Collating evidence Drafting statement and submissions Attending conferences and hearings Explaining the award Obtaining the Court Order
Arbitration 1 Shortly after an FDR Dealing with chattels only Documentation received from both parties including a schedule which referred to the chattels 500 items Position statements submitted A Judge would not relish dealing with this task! Further information requested Some items were valuable in excess of 1 million Award with rationale for decision making
Arbitration 2 Arbitration commenced after a First Appointment, Maintenance Pending Suit hearing and FDR Indeed a trial had been listed Issues to be decided: How to liquidate the parties existing assets and managed debts; How to divide the remaining capital between the parties; How to make provision for ongoing support of the family. Award issued which facilitated W remaining in the matrimonial home for the next two years and gave H the opportunity to buy out W s interest so that he could develop it and potentially make a profit in due course
Arbitration 3 Arbitration dealt with five weeks after parties first met with the arbitrator bargain basement Very limited asset base Case was in disarray Required numerous directions appointments (all conducted by phone) Arbitrator took responsibility for the bundle Final hearing and award issued and arbitrator pleased by the power and efficiency of the process
Arbitration 4 Arbitration went very smoothly and quickly Full disclosure Reports on complex foreign pensions Matter dealt with when H needed to have cash distributed to him so that he could complete the purchase on his new French property Cost around 25,000 cheap for fully contested international needs based case
Arbitration 5 Schedule 1 and TOLATA case H was a professional and W had some health issues Urgent interim issue arose and strength of arbitration seen by immediate access by telephone to arbitrator Arbitrator held well to boundaries Complex TOLATA case resolved quickly and efficiently at cost on one side of 10,000 very good value
Arbitration 6 Tricky case. H lives abroad and W in England so logistically organising any sort of hearing would have been difficult. Arbitrator heard detailed arguments and was able to rule clause by clause on impasse in Consent Order Two clients equally co-owned a valuable company and there needed to be a detailed Shareholders Agreement Arbitrator able to adjudicate on Shareholders Agreement
Marketing Bargain basement fixed fee? Resolution road show Arbitration information by DVD/YouTube Separating together - options leaflet DR Conference spreading the word widely
Resources IFLA Institute of Family Law Arbitration - http://ifla.org.uk/ Family Arbitrator - www.familyarbitrator.com The Forum of Family Arbitrators FFA Numerous articles written Sharing of PowerPoint presentations and knowledge
Contact details: Suzanne Kingston Tel: +44 (0) 20 7597 6632 Email: suzanne.kingston@withersworldwide.com