Settlement Conferences and Family Law Arbitration

Hello. Welcome, everybody money stuff to my married on my solicitor on day lecture on a very pleased to welcome you to today's by psy session. Distant is a session where I'm going to be talking to you about at the use of settlement conferences in family proceedings and also family law arbitration. So I've been looking at set my conferences, particularly as these are used in Children cases on also increasing use of family law, arbitration and family law matters both in financial remedy cases and also relating to Children proceedings as you'll appreciate it. More more pressure now on, uh, parties to ensure that matters are resolved Azzam amicably as possible onder. Of course, we've got in family proceedings and CDR non court dispute resolution on their fault. There's certainly an increasing pressure on all parties to give more consideration to use off alternative methods off resolving matters other than three litigation through court. So I'll be going through both of these aspects with you over the course of this by size session lesson Start with the position with settlement conferences at themselves on this is where there was some very useful Gunn has brought together by the president of the family division back in July 2017. Sir James Mumby uh, whereby his lordship was really emphasizing at the usage Andi pilot off using settlement conferences. And this was initiative whereby the government was going to be testing this very much collaborative approach to dealing with public law, family cases and also private matters known as a settlement conference, so that if parties consented, they would then be involved in this pilot detained, being then to enable information to be obtained, doing the pilot to see whether it was a measure that was going to be utilized and used more widely. Onda somebody important aspects off a settlement conferences. It's a hearing which is used specifically for posts of further discussion on potentially with muted in settling the matter if possible. It's very important to note that it's a without prejudice hearing that takes place before the judge on it must have the consent of all the party. So that's very, very important in that regard and without prejudice, of course, very much means they for that one would not be up to refer to the contents of the settlement conference at any subsequent hearing in that regard on Does some of you do financial remedy matters? You'll be aware that this safe was somewhat facing military financial dispute resolution here in that we have in financial remedy matters the FDR, in the sense that that is also without prejudice. And a judge who hears the FDR will need to be different, judge to any, finally having judging the violence matter. And similarly, in that these Children proceedings insofar, settlement conferences are concerned. The judge. You here's a settlement conference. We need to be different to the trial. Judge after matter, does not settle up sentiment conference stage on the match. Think proceeds to any final hearing. Settlement conferences will then take place ordinarily, after the issues resolution hearing getting a public matter whereby the parties would be asked if they would think consent to taking part in a settlement conference with assistance, Of course, by the judge on day, it's very important that the court or still list a matter for a final hearing as well as a settlement conference to make sure that there's no delay than if the settlement conference does not achieve de outcome. So with this in mind, there was published by the Ministry of Justice. The Settlement Conferences a Pilot Onder evaluation document. This is the information Gladys for professional parties, put together ups amongst other parties, the Atrium CTS Legal Aid Agency and also for lawyers on also CAFTA's on local authorities. And this information and guidance was put together by the Minister of Justice with the approval in support of the then president of these family division, Sir James Mumby, on this document is dated July 2017. So I'm going to be referring to some aspects off this and really picking upon somebody key aspects that this document has highlighted. So this document and highlights the fact that some designated family judge areas worth and piloting the settlement conference these in family cases on the date was them being put together to look at a possibility off. This being used more widely. These would don't take place in a public law case after the seas resolution hearing and in private Children or cases thes take place after any directions hearing go More likely, the federal is the first human dispute resolution appointment okay, on a very, very important for ensuring that the courts staffed and still provide the matter to be listed for both of final hearing as well as a settlement conference should have been a case that decided the conference does not reach on at a outcome by way of being concluded. Okay, now somebody, other aspects with this is that at the actual settlement conference itself, theme position is that it is without prejudice. The judge will be there speaking to each other parties. But clearly what is discussed on referred to his privileged and confidential. And there is a touch. This document I referred to a short form which is shed good for a settlement conference is the annex one document attached to this on. But this will provide data which is then being gathered on put been put together with Muto looking to see whether or not that said, my conferences are then to be used more widely beyond the different areas which they are currently being used on. Uh, what of the other aspects that this document is referring to is the fact that doing this pilot it was agreed that illegal a DNC would pay the advocates the equivalent to on adjourned issues resolution hearing rate, having private Children or cases that my conferences would be referred to as an adjourned case manager hearing Onda Final hearing Dave eight would be paid for any successful settlement conference where it's finalized on water is made and if therefore the final hearing is counseled. Okay, now, looking at somebody other aspects than with this, it's important to note that if the parties do then said talked and of course, that would result in the final hearing, then that, of course not proceeding Onder if if they do settle thin that the aim is famous to try and a sex parties in trying to look at, really the benefits of continuing to natural settling. And you could imagine. Therefore, in a public law case, for example, if it is the case that, say the dispute er's to maybe type of order, for example, then it may be that sometimes there was matters could be dealt with by way off a settlement conference in that regard. Okay, so they frequency some of the things that the actual Annex one, which the judicial data collection form, would require questions to be asked, such as whether the case was suitably refer to for a settlement conference on whether that achieved on at come on, whether the matter was vacated or otherwise on what the outcome, of course, off the settlement conference was in that regard. Okay, now very important to bear in mind that the settlement conference itself is so. Therefore you're hearing itself, and therefore it will still take place at the Inn at Court on. But it will be possible, of course, for clients to have the benefit of the legal representatives at the conference, the settlement conference in that regard on the judge. Of course, we'll try fake much to try and mediate with YouTube and trying to assist with a view to possibly seeing if thematic would be settled at that conference. If, of course, the client does not agree at at the conference, then that the matter will proceed to find a hearing, if appropriate. But if the matter does proceed, and of course, that could be an order put together there with a view to them, the might have been dealt with by way of any final order and then potentially, to find a hearing being adjourned. Okay, so that's some of the information they're in so far as settlement conference. He's a concern now That brings me on to the other aspect which I wish to discuss. We did stand US position with family law arbitration and insofar as this is concerned, of course, arbitration bites fe. Nature is a form of alternative dispute resolution whereby parties were then certainly for arbitration into into an agreement whereby essentially they would then be appointing a qualified person who is suitably qualified to adjudicate on the issue on dumbed. The process in England is famous, governed by the Arbitration Act of 1996. Okay on arbitration. Family arbitration, when this first came to effect, was initially being used for financial remedy cases, but certainly order last for years. This has also been successfully useful Children proceedings also, and with that in mind, there is in particular of a useful document which has been put together by the Institute of Family Arbitrators. The title being the Got a Guide to the Family Low Arbitration Scheme, which is an introductory guide for family arbitrators, judges and also professional refers on, in fact, the 63rd edition of this document. So it's very useful and I have referred to some aspects of it which is also acknowledged, protected by Crown Copyright family and also from the Institute of Family Arbitrators in terms of copyright protection from there now, some of you who may well have had cases where by family or arbitration it has been used. Somebody important aspects off. This is so it's used, of course, very much in commercial matters and in England. Wells D framework for this is like safely Arbitration Act of 1996 on but the aim of this release it see if it's possible for the parties to actually agree on the way forward between themselves on that they would done agreed to appoint a family arbitrator. Four D shoes refer to deep process itself is private and confidential in that regard on the the parties within a point on a pro put family arbitrator with a view to assisting with resolving a dispute in that regard on uh, with that in mind, there are, of course going to be the costs involved in terms of the arbitrator's fees and expenses and also, of course, ensuring that the appropriate venue is identified and and SD costs in terms of engaging with lawyers as well, and also of course, just like you would have in a in a case. That court system may well be experts identified in that garden regard also, so arbitration in this regard family arbitration scheme could be used for both like, say, financial remedy matters on their for various types of disputes and also indeed, for provisions. There is provision for matters relating to Children also in that regard, so he could cover aspects related to, for example, charred arrangements or to specify the level where they're spending time with, for example, Onda relocation issues, for example, in particular on, uh, it's important not that the arbitration scheme cannot be used in relation to care proceedings in that regard, so it's not going to be used in relation to public law proceedings. But of course, satellite conferences that I've just discussed with you dollars are heavily used in public Children law proceedings in that regard, in terms of the process for this. Then again, the Institute of Family Law Arbitrators Limited was actually prepared of a useful guide for this on their Ford strongly recommend that you do have a look of that, and with that in mind, of course, it may well be the case that the parties have attempted mediation and hasn't resolved matters on gay. If they do feel the arbitration may be a way forward and that can identify potential arbitrated themselves indeed to may have the benefit off legal representation will assist in that process. Now there are different forms are filled in depending upon whether it's a financial dispute for lunch, a remedy, dispute or Children or dispute. If it's a financial remedy dispute in its form a r B one F s that's filled in on if it's sir Children law related dispute and it's going to be for a RB one CS. Okay, so what does different forms, depending upon the at the circumstances? There, on one of the aspects to bury mind is wonder parties do which to go through the process. They would need to confirm and agree that they understand the rules relating to arbitration on the understanding obligation in relation to the process itself. They would need to confirm that they will be providing full of fact disclosure. They can see in that respect it's going to be very similar to dealing with financial remedy cases in court. Onder also in relation to Children scenes that we need to call firm, that they will make full and frank disclosure relationship issues over safeguarding, for example. So it's favor important to ensure that your client is made aware of that. Okay, and then what would be happening then? Easy parties wouldn't be looking at it like they appointing a suitably nominated family law arbitrator Andi. With that in mind, the parties would then need to ensure that enquiries once those are dot with Dundee Family Law arbitrate would then I wish to become appointed. And this is where they would need to be in agreement to the terms off the appointment or the family low arbitrate in that regard that it would need to be really in agreement in that regard and the process itself. A maturity depends upon the nature off the dispute. In terms of that, the nature to dispute sometimes it may be that dramatic will be dealt with by way of over the phone, for example, often it will be you find meetings which were involved parties being there and therefore face to face meetings, and that could be a number of meetings in this regard on that the parties will been off course through disposers. Hopefully reach an agreement, and this is where the parties do fine. We'll find that hurt. The arbitrator's decision would then be put together in writing, and this will include just like you would in court. You love effectively a reason and also former award. So it's akin to effectively halving the judgment, not a court the parties will have. If they so wish divide to appeal to a court on any points of law. It felt appropriate. And, um, what you find is, let's say to do you agree between them to between themselves, then both forms of arbitration. Whether it's in relation to Children proceedings with its to the finance proceedings, there will be an expectation to actually then invite the court 10. Teoh formalized. It's my way of making an order so effectively invited to court to make an order. But of course, as you know, in Children proceedings, we do have Section one subsection five of the Children activated nine, where the court has to ask themselves whether it's better for the child that not to make an order, indoor circumstances that in order principle is very much applicable in that regard once, therefore, any order than is endorsed by the court that then enforcement would be like you would normally haven't so far is called towards are concerned that could be used in that regard. Okay, it's a very, very important to bear that in mind now. Sometimes you may find that the party's just have started a process, but they cannot really reach an agreement on. It is possible, in some situations to actually nd family law arbitration before it's been concluded. So that is possible a swell in these situations. Capes We can see some of the key aspects insofar as this process is concerned. Onda. Very important, very mind that natural processes consensual parties must, of course, like they agreed to the process taking place on that. They will then be confirming that it will be bound by the decision by the arbitrator in that regard so very, very important to bear that in mind and in terms of what's agreed. Of course, there will be just like you would in other situations agreements between the parties as to when, for example, they may well be, uh, certain expectations off example if they agree a financial order, then, just like you would with a consent order, they'll be on agreement. Has to win for his arm. Police. There is to be provisions in relation to lump sums, periodical payments, provisions relating to sale of the property, for example. Okay, so you can see somebody aspect, sir, insofar as that is concerned. Okay. So very important to bear in mind that the active arbitration act does provide that any award Elise put together is therefore enforceable, and it would be enforceable by way, often application at a court in that regard. So they foot well in that regard have have the weight which is a quiet to ensure its enforceability. Okay, so those are some of the aspects that want to discuss with you in relation to both settlement conferences and also family law arbitration. And as you can see, given the significant increase on our family resources, particularly our family court, you can see that both of these alternatives are very important and therefore need to be certainly in your mind when you're advising clients accordingly both from the outset that Saturn also dealing proceedings. Thank you very much indeed for listening. I hope has been used for four years and I speak to you next time. Thank you very much by finance.