I have reviewed with interest Lucinda Ferguson’s letter ‘"Final and binding" awards’.
Lucinda refers to my ‘Family law arbitration wins’ article as ‘misleading in one respect, namely that "awards" made under the Scheme are "final and binding"’. I never stated that an award in arbitration usurps or undermines the jurisdiction of the court.
Lucinda mentions article 13.3 of the IFLA Scheme Rules. It is important I mention when reading article 13.3(b) that ‘if the subject matter of the award requires the award to be embodied in a court order’ the court retains the jurisdiction to make such changes when making that order as it considers necessary.
At the initial pre-engagement meeting before the arbitrator, the arbitrator makes it quite clear that the parties are entering into a contract with the arbitrator and that the contractual relationship will result at the conclusion of the arbitration in a final and binding arbitration award (as stated in my article) between them. The parties are also informed that, should the award include terms that may require enforcement, the award will be referred to the court and the court will be asked to encapsulate the award into a court order enabling, where necessary, enforcement.
I think in the circumstances Lucinda may not have been fair with her comment in respect of this particular aspect of my article.
DR Sheridan, DR Sheridan LLP, Bushey, Herts