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Until recently few jurisdictions have allowed arbitration of family law disputes, considering such arbitration to be contrary to public policy. But policies favouring private ordering, combined with pressures on family courts have encouraged reconsideration of the policy issues. This is notably true in common law jurisdictions. Similar developments in civil law jurisdictions are inhibited by the wording of national civil codes.

Differences in substantive laws and in legal institutions also contribute to diverse assessments of the utility of arbitration: Where arbitration has been promoted, its scope has been limited to the financial consequences of divorce in some jurisdictions, while in others it extends also to child arrangements.

Policy concerns are addressed through the development of enhanced protection for the parties to arbitration as compared to commercial cases, whether through case law or legislation. Key areas in which this has occurred include: According to Part 3. One such form of dispute resolution is arbitration.

An Institute of Family Law Arbitration IFLA was established in England in with a view to promoting arbitration of family law disputes and providing a framework within which such arbitration could take place under the Arbitration Act England and Wales are not alone.

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In recent years institutions conducting or regulating family arbitration have also emerged in, inter aliaGermany, Spain, Australia, and Canada. These include speed, flexible scheduling, more informal procedures, the opportunity to select an appropriate expert as arbitrator, and confidentiality.

Lower costs are also claimed. Although the parties have to pay the arbitrator sthere is less wastage of costs on legal representation for repeated — and wasted — court attendance.

This article explores the development of family arbitration in the jurisdictions identified above, with occasional references to developments elsewhere.

In each case the legal framework for such arbitration is provided by a general arbitration statute, essentially designed for commercial disputes, or by family arbitration legislation which constitutes an amendment of the general decdeto. The article does not extend to out of court dispute resolution in the context of personal, religious, or customary laws. The general regulatory framework for arbitration — which although designed for civil and commercial matters has provided the starting point for regulation of family arbitration — is broadly similar throughout the world, thanks in particular to the work of UN Commission on International Trade Law which produced the New York Convention on the Recognition and Enforcement of Arbitral Awards, establishing criteria for the enforcement of both arbitration agreements and awards, 4 and the Model Law, which has been adopted, with various modifications, in well over 60 states.

Countries with a long history of commercial arbitration retain their individual distinctive features, 6 but certain characteristics of arbitration are well established. Arbitration is founded on agreement. In essence, parties agree that they will take their dispute to a decision maker whom they trust the arbitrator or arbitral tribunaland abide by the decision of that person or tribunal. Antiramites is binding on the parties and can be enforced in the same way as a judgment.

A core use of arbitration is in situations where technical, commercial, or professional expertise is essential to the fair resolution of the dispute. The parties can select an arbitrator in whose expert judgment they have full confidence. Such rules may be incorporated in dispute resolution clauses in a main contract, wntitramites in submission agreements, 8 but in practice commercial parties frequently incorporate by reference the rules of an arbitral institution so that they can benefit from the accumulated experience of that institution.

The principal objective of such rules is to ensure that an arbitral tribunal can be established, even if the respondent to the arbitration is uncooperative. Once the tribunal is established, it can itself make decisions to facilitate the smooth antktramites of the procedure.

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Arbitration statutes thus typically establish the requirements for the validity of an arbitration agreement; the relationship between courts and tribunals, in terms of judicial scrutiny of the jurisdiction of an arbitral tribunal and the scope for judicial assistance; the default rules applicable in 20111 to the establishment of a tribunal and to a limited extent the conduct of the arbitration ; the criteria for a valid award and grounds and procedures for challenges to an award; matters relating to enforcement; and rules on fees and costs.


A significant feature of arbitration in most jurisdictions is that it is a single instance method of dispute resolution. This is in keeping with its commercial origins: The principal form of challenge to an arbitration award is a review on essentially jurisdictional and procedural grounds, rather than an appeal in relation to the findings of fact or law.

Exceptions to the single instance model exist. Generally, the trend in commercial arbitration is towards a harmonization of domestic and international rules, and towards restricted review of awards. It is assumed that the parties are of equal bargaining power and their personal autonomy should be respected.

Many of the restrictions on arbitration in family cases have arisen out of the control of church and state over marriage and divorce. Case law on arbitration is also dominated by divorce cases.

But the modern family takes many forms. The restrictions may well not be considered applicable in cases arising from the dissolution of a civil union, still less are they relevant to the parting of cohabitants. Nevertheless, other public policy considerations may still discourage arbitration of such disputes, and where children are involved the state retains a strong interest irrespective of the nature of the adult relationships.

In some jurisdictions, provisions of the Civil Code have proved an obstacle to family arbitration.

In Spain, for example, Article CC provides: He argues that wider scope for arbitration is problematic both on grounds of the limited autonomy granted to spouses by family laws and because of the greater scope for protection of weaker parties offered by the judicial system.

Similarly, the wording of the Code of Civil Procedure has shaped debates in Germany. The relevant provisions were amended in at the time of reforms of the law relating to arbitration. Currently Article ZPO provides: An arbitration agreement regarding non-pecuniary claims has legal effect insofar as the parties to the dispute are entitled to conclude a settlement regarding the subject matter of the dispute.

A antitramitrs thread in the story of the development or advocacy of arbitration for the resolution of family law disputes is the overburdening or breakdown of the judicial system. In that sense, there is a state interest in relieving the courts of as much of their family dispute resolution function as is compatible with the requirements of public policy. But substantial public policy grounds for retaining jurisdiction remain.

As well as upholding well-established principles such as legal certainty and judicial protection of weaker parties, the state antiframites an interest in ensuring that, as antitramiets as possible, any financial settlement between the parties does not impose welfare responsibilities on the state Paulsson, It also has an interest in ensuring that arrangements on separation or divorce are adequate to limit damage to individual family members Gilfrich The tension between these interests is illustrated by the following quotation, addressing the situation in the USA: Couples themselves are not the only ones that may experience financial loss; the government and community also incur losses related to marital or relationship dissolution and conflict.

In many jurisdictions, a divorce can only be granted once issues relating to property, maintenance, and child arrangements have also been resolved. If at the same time a court judgment is necessary to dissolve a marriage there is therefore a antitramitfs to take such issues to arbitration: That being so, it is not surprising that advocacy of arbitration as a method of dispute resolution in family law matters is in fact occurring in parallel with the dejudicialization of divorce in uncontested cases.

This is particularly true for countries in which the authority to grant a divorce is being conferred on notaries: In Ecuador, 22 Peru, 23 and Brazil, 24 for example, notaries can issue a divorce in non-contentious cases where there are no minor or disabled children involved. The parties have to provide documents proving the existence of the marriage to the notary, and also their agreement on the matters that need to be resolved for the divorce to be granted.

The notary will then inform the registry office, to ensure that the change in status is publicly recorded. The years — proved to be an explosive time in this respect. In Latvia 30 and Romania 31 notaries were given the authority to grant divorces in uncontested cases, even where there are children involved. Notarized divorce was proposed in France in but not pursued. In countries where arbitration of some family disputes is accepted as permissible, patrimonial claims, such as those relating to the liquidation of a matrimonial regime, are the antjtramites controversial, being closest to the existing domain of arbitration.


The position in Spain and Germany, and the influence of the wording of, respectively, the Civil Code and the Code of Civil Procedure has already been noted.


Similar wording can be found in decretk in other jurisdictions. Elsewhere the matter may be regulated by specific legislation on family arbitration. In Australia the Family Law Act was amended in to permit arbitration by the Family Law Actbut it is expressly limited to property, maintenance, and financial matters.

English law on the subject is at an early stage of evolution. There is no legislative framework beyond the Arbitration Actso the question of arbitrability depends entirely on case law. Recent case law has revised this stance, however.

Courts have favoured giving effect to an agreement that the parties have come to themselves for the resolution of their financial affairs following divorce, in the absence of overriding public policy concerns, or a vitiating factor such as undue pressure or the exploitation of a dominant position to secure an unreasonable advantage.

The decision was taken at a very early stage not to include children matters in arbitration at the time of the launch. This was after consultation with the Ministry of Justice.

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There was a perception that children law matters involve very different considerations including different personnel who may need to be involved in adjudications. There would be reference to hearing the voice of the child and possibly defreto representation of the child. It may yet be appropriate but it was felt that the IFLA Scheme would be better to succeed initially dealing with financial matters where there may initially be greater demand.

In most US states arbitration of disputes relating to division of assets and alimony has been well established for decades, but additionally in some states disputes relating to child support and child arrangements have been found to be arbitrable — whether as a result of case law or legislation.

The situation similarly differs from province antitramties province in Canada Morris, decrfto Any full comparison deccreto family law dispute resolution would have to extend into differences in substantive law, which may reduce the incidents of disputes, and into family and religious cultures which may provide a support network for separating couples and ways of dissipating or suppressing conflict.

The focus here is antitranites limited: But they may antitramotes other dispute resolution mechanisms that provide advantages claimed for arbitration Section IV. On the other hand, in states which have adopted a more liberal approach to arbitration of family disputes, amendments to legislation or creative court rulings have sought to accommodate the special features of family law Section IV.

The position in California may be used as an illustration of the difficulties of appreciating the role of arbitration in the light of diverse institutional arrangements. California is identified in writings on family arbitration as taking a restrictive approach. In practice this means dwcreto although arbitration concerning property division and spousal support is permitted, binding arbitration in relation to child arrangements is not.

But mediation in this context can also have some unusual features. Thus in Ventura County, for example, parents who participate in mediation relating to child arrangements are natitramites to a Child Custody Recommending Counsellor CCRCdedreto is typically a specialist in family therapy or social work.

The CCRC can gather information from the parties themselves and from the children. The courts or the parties themselves may also seek specialist assistance in the proceedings making or implementing decisions on child arrangements.

The assistance is usually obtained through the court appointment of a custody evaluator 58 or a referee, 59 who — aantitramites an arbitrator — may be a non-lawyer with the desired professional expertise.

In family law disputes a suitably qualified referee, usually referred to as a Special Master, may assist in resolving disputes on patrimonial issues such as the division of matrimonial property, or concerning child arrangements. A general reference under Code of Civil Procedure section shares some of the features of arbitration: Across the country, professionals not just lawyers are assuming the role to acquire quasi-judicial immunity while performing the function of a parenting coordinator or parenting consultant.

In addition, private judging plays a significant role in California, in part as a means for wealthy litigants to avoid publicity, and in part because of cutbacks in financial support for the public courts. Article 6, section 21 of the California Constitution provides: A private judge will sign the same oath of office administered to Superior Court judges.