Sir James Munby, president of the Family Division, has issued guidance on arbitration in the family court in a move which could encourage more lawyers to view alternative dispute resolution (ADR) as a viable option.
The practice note comes almost two years after Munby (pictured) first gave his backing to the use of arbitration and had highlighted the increasingly pressing need for ‘procedural adaption’ to deal with ADR.
In the practice note, released yesterday evening, Munby reasserted the obligation under family procedure rules that the family court must ‘where the parties agree' enable non-court resolution.
The note clarifies that if financial remedy proceedings are already in court, seeking the same relief that is at issue in the arbitration, a stay should be granted for the court proceedings.
It also says that unopposed applications for a court order reflecting an arbitration award should be dealt with in most cases on paper by a district judge. However the note adds that the court ‘will always retain the ability to raise questions in correspondence or to call for a hearing'.
Drawing attention to an observation he made in a previous judgment, Munby says that only in ‘the rarest of cases' will it be appropriate for the judge not to approve the order.
Solicitor and family law arbitrator Tony Roe, of Tony Roe Solicitors said the note was a ‘key development’ in family law.
He said: ‘Family law arbitration offers speed, flexibility and confidentiality. Court delays are increasing, upping the cost of ‘traditional’ litigation. With the key launch of the practice guidance many more family lawyers will realise that family law arbitration is a very real option.’
Nigel Shepherd, family arbitrator and vice chair of family law organisation Resolution, said: 'This guidance is very much to be welcomed as further strengthening of support for arbitration as an option for family law issues. It further reinforces the approval to the process given by [Munby] in S v S almost two years ago, and will hopefully result in increased referrals to family arbitration.
'The benefits of speed, flexibility and confidentiality are particularly important at a time when our court system is coming under increased pressure.'