Three critical points about ADR

Family Law|December 7th 2015

These days resolving family disputes outside of court is de rigueur. Lawyers encourage it because it is quicker and cheaper than going to court, and courts (and governments) encourage it because it reduces the strain on an over-stretched justice system. However, as a news story over the weekend demonstrates, seeking to resolve family disputes at non-court tribunals can be fraught with danger.

The story related to the use of Sharia courts to adjudicate and decide (in particular) family disputes. Referring to research carried out by a Dutch scholar who was granted access to Sharia courts in this country, it warned that women can be severely disadvantaged by a system that does not treat them equally. It recounted, for example, a case where a woman who claimed to be married to a physically and verbally abusive man was told by a “laughing” judge: “Why did you marry such a person?”, and of a woman whose husband is denying her a divorce until she gives him £10,000, who is not helped by the court.

Now, I’m not going to comment upon the story or its accuracy, save to say that it does seem to confirm many similar stories we have heard of in the past. What I would, however, like to comment upon is the way that certain types of ‘alternative courts’ have sought to justify their existence on the basis that they are just a form of out of court arbitration, which is allowed under our law.

Whilst out of court arbitration is of course possible, there are three critical points that must be borne in mind:

  1. Firstly, all forms of ADR, including arbitration, must be completely voluntary. If one party does not agree to it, then it cannot take place. This is made clear by paragraph 1 of the President’s Practice Guidance on arbitration in the family court (which relates to post-relationship breakdown financial disputes): the parties must agree both to submit their issues for decision by an arbitrator, and to the arbitrator’s award being binding upon them. Unlike a court, an arbitrator cannot force their decision upon an unwilling party. And the agreement to ADR must be completely freely made, without any form of duress. Parties must not, for example, feel compelled to use it due to cultural, family or other pressures.
  2. Secondly, ADR must follow law of England and Wales. This is made clear in paragraph 2 of the Practice Guidance: “It is a fundamental requirement of this Guidance that the arbitrator will decide the substance of the dispute only in accordance with the law of England and Wales.” There is only one legal system in this country, which applies to all. This must be the case: two or more incompatible competing systems would be an absurdity and would ultimately lead to a situation where anyone could set up a system to suit their own requirements.
  3. Lastly, and this is really just an aspect of my second point, but sadly needs to be stated separately: ADR must not discriminate on the basis of gender. The President clearly saw the need to emphasise this, also in paragraph 2 of his Guidance: “This Guidance does not apply to, or sanction, any arbitral process based on a different system of law nor, in particular, one where there is reason to believe that, whatever system of law is purportedly being applied, there may have been gender-based discrimination.” This requirement not to discriminate of course extends to the arbitrators themselves, who must not be biased. In particular, they must not discriminate against women. Contrary to popular belief, our law is not biased in favour of men or women, and it is fundamental to our society that men and women should be treated equally.

There is, of course, much else to be said about arbitration, but the three points above are crucial, and if they are not complied with then the ‘arbitration’ simply cannot be valid. Arbitral processes in family matters are here to stay, and they may well become more common in future, but we must ensure that parties are protected from processes which do not follow these three basic points.

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