The Financial Remedies Working Group Consultation on proposals for Arbitration

August 26, 2014 Posted by:

MIAMs’ objective is to encourage non-court dispute resolution. Participants in Arbitration have already signed up to that. So why not clarify that those who need to involve the Family Court either during an arbitration or when the award has been issued don’t need to go through the MIAM hoop?

For fuller discussion and a proposal read on…

The Financial Remedies Working Group Consultation on proposals for Arbitration

Here’s a suggestion for consideration by the Financial Remedies Working Group in furtherance of ‘procedural changes designed to ensure the adoption of arbitral awards in the family court in a way which is as swift and uncomplicated as possible’ (para 85 of their interim report). In part it has been prompted by a discussion a while back between Rhys Taylor and Tim Melville-Walker.

The list of MIAMs exemptions should be clarified and refined to facilitate the use of arbitration.

Applications for consent orders are specifically placed outside the scope of MIAMs by PD 3A para 13(2)(a). So where the application to the Family Court is for a consent order, including financial remedies, to reflect an arbitral award the MIAMs requirement already does not apply.

Moreover, by virtue of PD 3A para 13(2)(b), proceedings ‘for enforcement of any order made in proceedings for a financial remedy or of any agreement made in or in contemplation of proceedings for a financial remedy’ fall outside the requirement for a MIAM. An IFLA agreement to arbitrate in Form ARB1 should, arguably, come within the scope of the phrase ‘any agreement made in or in contemplation of proceedings for a financial remedy.’ And so, again arguably, a successful show cause application which at the same time seeks enforcement against the resiling party (for instance by way of an order for sale under MCA 1973, s 24A) should not need as a preliminary to pass through the MIAM hoop.

It might be thought that whether or not the applicant in such a case must attend a MIAM (or qualify for an exemption) is not so clear-cut in some other arbitration-related situations. It is certainly desirable that, in each of the three situations described below (and there may be others), the agreement to arbitrate (and the specific provisions contained in the IFLA Form ARB1) would, via an amendment to PD 3A para 13(2)(a) (which currently excludes ‘consent orders’ without elaboration); or FPR rule 3.8(1) (the list of MIAM exemptions), expressly take such applications outside the scope of the MIAMs scheme.

Thus it would be helpful if at some point clarification might be given that attendance at a MIAM is not a pre-requisite to an application to the court in situations where there may well as yet be no ongoing or even stayed application for a financial remedy, but (for example) that application needs to be made to the court:

• for the enforcement of an arbitrator’s peremptory order under section 42 of AA 1996;

• to secure the attendance of witnesses under section 43 of AA 1996; and perhaps most significantly

• for a would-be resiling party to show cause why an order should not be made to reflect an arbitral award.

It would be not only counter-intuitive but also at evident odds with the thrust of Part 3 if the delay and expense of MIAMs were to be imposed in a situation where the objective of taking the main dispute out of court had already been achieved.

If you would like to comment on this proposal before it is submitted to the Financial Remedies Working Group Consultation on its 31 July Interim Report, or wish to make other suggestions, please post your contributions on the LinkedIn FamilyArbitrator discussion group site.