What does it mean to be a family law arbitrator? Be romantic!

SageBy Jill Howieson

As Martin Bartfeld said in his article earlier this month, “it is possible to attain a just outcome without doing things as they have been done before.” [1]

In arbitration, the way things have generally been done is by private judging rather than ‘arbitrating’.

As arbitration is making comeback; especially in Family Law, perhaps it is time to consider the question – what does it mean to be a family law arbitrator?

A brief history of arbitration

Arbitration is our earliest form of ADR.  According to Derek Roebuck, everywhere in the Ancient Greek world, arbitration was normal. [2]  In ancient arbitration, the arbitrator was more of a mediator than an arbitrator.  It was only if the parties couldn’t reach agreement themselves that the arbitrator would decide for the parties.

Judge Cryan outlines the role of the arbitrator in traditional family law arbitration as one of a sage.  Parties to a domestic conflict would agree to put their family disputes to the sage in the community and be bind by what he had to say (if they couldn’t agree between themselves first).[3]

Modern arbitration

Judge Cryan’s lecture on Family Law arbitration in the UK, delivered in June 2017, raises some salient points about modern family law arbitration.

  • Family law arbitration is being considered around the world—Australia, England, Wales, Germany, Spain, Canada, and the US.
  • All the models of arbitration under consideration seem to be the same—private judging.
  • There has been no significant take-up of family law arbitration anywhere.
  • In the UK, in 2017, there had only been 140 family law arbitrations conducted over past five years despite establishment of Institute of Family Law Arbitrators (IFLA) in 2012.
  • Lawyers remain largely unaware or are wary of arbitration and as such parties remain unaware or wary of it as an option on the family law dispute resolution menu.
  • Family Law Arbitration is not popular—yet!

As there is not much literature on the role of the arbitrator in modern family law arbitration, it is helpful to look at where arbitration has been more prevalent in the modern world – commercial and international arbitration.

International commercial arbitration

Crawford analyses the notion of the “ideal arbitrator” in investment and international arbitration.[4]  He

“…draws inspiration from Yves Dezalay and Bryant Garth’s historical conception of commercial arbitrators as a closed group of “Grand Old Men”– lawyers of distinction, trusted for their wisdom and judgment, although not arbitration specialists.  Dezalay and Garth pinpointed a second generation of arbitrators, who they rather unhappily labelled the “Technocrats.” These were expert arbitration practitioners who had spent their entire careers working in the field.  In 2012, Thomas Schultz and Robert Kovacs revisited Dezalay and Garth’s sociological study and added a third generation of arbitrators, whom they called the “Managers.” These were arbitrators highly skilled at managing proceedings, deliberations, and the organisation of tribunal work.”[5]

Crawford goes on to explore three potential dimensions of the ‘ideal arbitrator’—impartiality and independence; technical expertise; procedural and managerial expertise.  He ultimately decides that the quality of an ideal arbitrator lies in his or her ability to balance ‘unnecessary procedural diversions’ with ensuring fairness.

Commercial domestic arbitration

For domestic arbitration, type into a search engine ‘the role of an arbitrator’ and the engine changes the search to ‘the role of arbitration.’  Thus, we can ascertain that to understand the role of the arbitrator in domestic arbitration, we look to the role of arbitration.

In 2012, the Australian Commercial Arbitration Act 2012 (the CAA), updated the uniform Commercial Arbitration Acts (1985) to give parties an increased ability to shape the procedure themselves.

The Paramount object of the CAA is to facilitate the fair and final resolution of commercial disputes ‘… without unnecessary delay or expense’.  The CAA aims to achieve this by ‘enabling parties to agree about how their commercial disputes are to be resolved…and to provide arbitration procedures that enable commercial disputes to be resolved in a cost-effective manner, informally and quickly’.

Thus, the role of the arbitrator in commercial disputes is to hold in mind that it is for the parties to agree the arbitration process— and that it is to be less formal, quicker, and less expensive than judging.

Let us know turn to domestic family law arbitration.

History of family law arbitration in Australia

1991 amendments

In 1991, the Australian government amended the Family Law Act 1975 (Cth) (FLA) to permit arbitration in property, maintenance, and financial matters.  Despite the legislation, there was no significant uptake of family law arbitration. (In contrast, mediation initiatives, albeit Government funded, enjoyed an immediate uptake such that now mediation is an accepted part of family law dispute resolution culture.)

2008 revisiting arbitration

In 2008, upon request from the Attorney-General, the Family Law Council re-considered the arbitration of family law property and financial matters.  In accordance with its terms of reference, the Council focused on the desirability of compulsory arbitration and how the FLA could incorporate a compulsory model.   In the Council’s discussion paper, The Answer from an Oracle, the Council noted that there was a clear indication that some key stakeholders did not support the introduction of discretionary court-ordered arbitration.  Again, there was no significant uptake of family law arbitration.

2015 arbitration amendments

In 2015, the government again revisited the use of family law arbitration for property matters and made amendments to the rules to facilitate greater use of arbitration.  The amendments included:

  • amendments to disclosure and subpoenas,
  • the procedure for an arbitrator to refer a question of law to the court for determination,
  • the procedure for notifying the court that the arbitration has ended and the arbitrator has delivered an award, and
  • the requirements for registering an award.

All in all, there hasn’t been a great deal of discussion on the role of the family law arbitrator.

The Role of AIFLAM

When the Commonwealth Government amended the Family Law Act in 1991 to provide for arbitration, it legislated qualifications for arbitrators of family law disputes and nominated that AIFLAM (the Australian Institute of Family Law Arbitrators and Mediators) keep a list of qualified family law arbitrators (those who had completed the requisite training).

In the 1990s, AIFLAM in conjunction with Bond University Law School developed their arbitration course and taught it to family law practitioners.  AIFLAM continued to offer the arbitration course intermittently from the 1990s but all the while there was a limited uptake of family law arbitration.

In 2017, following the 2015 amendments, AIFLAM recognised the need to update its existing arbitration course and to increase arbitration training for family lawyers. It also recognised the imperative to design an accepted model of arbitration and a system of standards and accreditation.

In 2018, AIFLAM conducted consultative workshops to understand the culture of family law arbitration; to develop an arbitration practice model; to explore the utility of family law arbitration standards, and to understand the role of the family law arbitrator at a deeper level.

In 2019, AIFLAM completed the AIFLAM Arbitration Practice and Approval Standards (the Standards) as part of the AIFLAM ADR Accreditation Scheme.

Theoretically grounded Standards

The Standards were drafted with the theory of Procedural Justice firmly in mind.  The practice model was designed according to the research evidence-base that shows that procedural justice is the most important factor in shaping our overall judgments of justice and satisfaction in dispute resolution decision-making contexts.  Essentially the research shows that if the parties perceive that a decision-making process is procedurally just then they are more likely to:

  • view the enacted process as legitimate
  • accept the decision whether it is in their favour or not
  • retain their sense of autonomy and self-worth
  • co-operate and accept the decision-maker’s advice/award, and
  • have a sense of fairness and satisfaction with the overall process.[6]

The first major study in procedural justice was of people involved in an arbitrated civil lawsuit in the federal court in the US.  The study found that judgments of procedural fairness were strongly related to the parties’ decisions to accept the arbitration award.  Subsequent studies have replicated the finding and now it is clear that parties to a civil dispute are more likely to accept an arbitration award if they perceive that the procedures used to arrive at the award were fair.  Further, the research shows that perceptions of procedural justice influence one’s perceptions of the legitimacy of the decision-making process—a major consideration in the emerging ‘profession’ of family law arbitration. [7]

So, what is the role of the arbitrator that these Standards contemplate?

In terms of what makes a process seem fair, the research shows clearly that the quality of the treatment of the parties is the most important consideration for the parties.  The quality of treatment involves the parties perceiving the decision maker as:

  • treating them with respect, politeness, and dignity
  • being trustworthy
  • communicating his or her ideas honestly in a straightforward way and providing honest explanations for his or her decisions
  • being impartial and independent
  • giving them an opportunity to say everything they want to say
  • taking their needs into account and considering their views, and
  • giving them enough information about arbitration so that they can make informed decisions about it.

The rules of being a Family Law Arbitrator

Most writers in most arbitration fields bemoan the fact that arbitration has become increasingly adjudicative in nature and is not very popular.  For family law arbitration to reach its potential as a fair, feasible, desirable and thriving family law dispute resolution process, below are some rules for the Family Law Arbitrator.

Be an arbitrator, not a judge

  1. The first rule for the family law arbitrator is be an arbitrator—not a judge. The history of arbitration suggests that a family law arbitrator is someone who balances being a sage, a mediator and an arbitrator all at once.  Someone who the parties trust to make a wise decision about their future, and whose decision they will obey and respect, if they aren’t able to reach the decision by themselves..[8]

Process choices

  1. The second rule for the family law arbitrator is that it is the parties’ process, not yours (btw – this is a prominent mediation rule too). In arbitration, the parties agree to arbitrate and they agree the arbitration process—the arbitrator does not determine how s/he will conduct the arbitration, s/he manages it.  The parties have process choices and process control.

Procedural justice

  1. The third rule for the family law arbitrator is be procedurally just. A procedurally just family law arbitrator will:
  • treat the parties with respect, politeness, and dignity
  • develop trust by understanding the parties narrative and needs
  • be honest and transparent
  • ensure the parties’ process control (as above) and,
  • ensure informational justice and informed consent

Be romantic!

  1. Paulsson laments that arbitrators “labour, ..not for love” but for an added string to their business bow.[9]  Therefore, a final rule for family law arbitrators is to be romantic.  Labour for love—for the love of justice; for the love of the community and for the families who put their trust in you; and for the love of a profession, which assists people to navigate one of the most vulnerable times of their lives, and resolve their disputes in fair, polite, respectful, dignified, and constructive ways.

What type of arbitrator will you be?

 

References

[1] https://adrresearch.net/2019/06/16/arbitration-of-family-law-property-and-maintenance-disputes/

[2] Derek Roebuck, Ancient Greek Arbitration (Oxford, Holo Books: The Arbitration P, 2001) at pp. 319–331; Derek Roebuck, ‘“Best to Reconcile”: Arbitration and Mediation in the Ancient Greek World’ (2000) 66 Arbitration 275–278

[3]  Judge Crynan (2017)  https://www.youtube.com/watch?v=1jTIGFcrT18

[4] James Crawford (2018) The Ideal Arbitrator: Does One Size Fit All? 32 American University International Law Review 1003

[5] Ibid, 1005

[6] Howieson, J. (2011) ‘The Professional Culture of Australian Family Lawyers: Pathways to Constructive Change’ 25 (1) International Journal of Law, Policy & the Family 71-99

[7] Lind and Tyler (1988) The Social Psychology of Justice (Plenum Press, New York)

[8] Cryan (2017) above n 2.

[9] Jan Paulsson, Introduction, 1 Arbitration International 1, 2 (1985) cited above ibid, 1012

 

Advertisements

Post your comment

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s