It’s Arbitration, But Not As We Know It: Reflections on Family Law Dispute Resolution

Muslim Alternative Dispute Resolution: Tracing the Pathways of Islamic Legal Practice between South Asia and Contemporary Britain

“…28 This has taken place in response to modern shifts in family relationships and in order to spare parties from the strains of litigation, so long as these arbitration mechanisms operate under ultimate oversight by the legal system. 29 Since most Muslim dispute resolution forums focus their activities upon family issues such as marriage and divorce, their decisions do not have recognition in court (unlike the decisions of the MAT on civil and commercial matters discussed above). Despite this, both the "formal" judiciary and "informal" quasi-legal faithbased forums have to some degree converged around a mutual acceptance of the benefits of arbitration and mediation.…”

Just-ish? An analysis of routes to justice in family law disputes in England and Wales

“…Whilst arbitration is not expected to deal with a high volume of cases in the same way as mediation, recent developments in family arbitration can also be linked to LASPO. Kennett (2016) recognises that the development of arbitration cannot be separated from its social, cultural and political context, regardless of the fact that arbitrating parties typically have adequate financial resources and so are less affected by LASPO. She notes 'a common thread in the story of the development of arbitration for the resolution of family law disputes is the overburdening or breakdown of the judicial system.…”

“…Firstly, as highlighted above, it is a mandatory principle under IFLA that arbitration must be conducted in accordance with the laws of England and Wales. Whilst this has been justified as a result of the 'sensitivity of family law issues' and may promote compliance with human rights norms, it may marginalise mainstream arbitration for those who would prefer their personal religious laws to govern the dispute, who instead may seek recourse from a religious tribunal operating as an arbitration tribunal (Kennett 2016). Moreover, it does not adequately address the needs of transnational families who wish for the state laws of a foreign jurisdiction to govern their dispute.…”

“…Given that family law arbitration in England and Wales is in its infancy, it is possible that further developments to accommodate international laws may be adopted in time. Secondly, Kennett (2016) acknowledges that more stipulations may be placed on the choice of family law arbitrator than in a commercial context, including the qualifications held by the arbitrator, the number of years of professional practice in family law, and the levels of dispute resolution training. The IFLA guidelines state that in court proceedings, 'there is no guarantee that the appointed judge will have specialist knowledge or experience in resolving disputes concerning children nor be conversant with the often highly complex financial arrangements the parties are seeking to unravel… a family arbitrator is an experienced family lawyer who specialises in financial and/or children disputes' (ifla.org.uk).…”

“…Practice Guidance issued by the judiciary on 26 July 2018 provides that the physical and emotional safety of any children concerned must be prioritised in handling the dispute and by taking appropriate care not to make an order that will put the child concerned or the parties at avoidable future risk. Kennett (2016) argues that this places an indirect obligation on arbitrators to ensure that any determination is in accordance with a child's best interests, mirroring the provision in the Children Act 1989. Moreover, prior to commencing the arbitration process, the parties are required to complete a safeguarding questionnaire.…”