Gavin Smith offers some practical tips on what to do when the parties agree they want to arbitrate but they cannot agree as to who to appoint as their arbitrator.
In January of this year the most senior family judge in England and Wales, Family Division President Sir James Munby, gave a major boost to family arbitration in his widely reported landmark judgment in the case of S v S.
However, despite Sir James’s powerful endorsement of the arbitration process, it seems that many lawyers are still reluctant to recommend arbitration to their clients as an alternative to going to court. Their main concern, it is reliably reported, is that they will be blamed by their client if they recommend to their opponent the nomination of a particular arbitrator, who then goes on to deliver an award that is unfavourable to their client.
One can see how these concerns arise. After all, in the court system the ‘draw’ of judge (whether good, bad or indifferent) is a lottery over which the parties and lawyers have no control and for which therefore they cannot be held liable if things go wrong. In my view, though, the benefits of being able to choose a highly regarded expert to arbitrate one’s dispute, and to retain him or her throughout the entire process, far outweigh this perceived drawback.
Moreover, there are several methods of selecting a suitable arbitrator for the dispute in question which should prevent the disgruntled party’s lawyer from feeling exposed in the event of an adverse award. I claim no originality for these suggestions, which are drawn from litigation and mediation practice and some of which have been aired already on our FamilyArbitrator LinkedIn discussion group.
- First, the parties can jointly approach an experienced and well regarded arbitrator to make the nomination for them, based on their stated requirements such as specific expertise, seniority and geographical location.
- Alternatively, the parties can simultaneously exchange the names of, say, four arbitrators, ranked in order of preference. If one name is common to both, it wins. If there is more than one name in common, they score in order of their ranking.
- A third option is for one party to serve a list of say five names on the other party; that party deletes one; the first party then deletes one, and so on until one name is left.
- It is also possible to request IFLA (the Institute of Family Law Arbitrators) to make the nomination from its panel of arbitrators. However, the problem here is that unless the parties state specific requirements, IFLA has to ensure that one arbitrator is not receiving more arbitration nominations than another. Such a system, while no doubt resulting in a fair distribution of arbitration work, does not necessarily result in the nomination of the best arbitrator for the dispute in question.
Other methods of appointment which share the same objective, of sharing the responsibility for the choice of arbitrator, can no doubt be devised.
Given the range of different methods available for selecting the arbitrator, there is in my view no good reason why wavering lawyers and their clients should not take advantage of the many, self-evident benefits of family arbitration.
Gavin Smith was the arbitrator in S v S.