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

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: the role of the civil law notary in drawing up and dissolving a matrimonial property regime may be influential in this respect, while competitors to arbitration also include mediation, private judging, and the use of special masters and parenting co-ordinators. 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: the permissibility of an arbitration (as opposed to a submission) agreement; availability of an appeal or the intensity of review of an award; specification of the qualifications for arbitrators; and specific measures for the protection of children.