The co-editors of the Family Arbitrator website
provide a comprehensive checklist of topics and considerations for discussion at the First Directions Appointment.
This appointment is usually the first stage once an Institute of Family Law Arbitrators (IFLA) family financial arbitration is commenced. Prior to the meeting, the parties are invited to fill in what is, in effect, a Scott Schedule for exchange, on an informal basis, both so that common ground can be established and to clarify where issues may arise that will need determination at that meeting.
The checklist may also give those unfamiliar with an IFLA arbitration a good understanding of the options that are available and the extent to which the parties can influence the procedure they would like adopted for the resolution of their dispute.
What follows is a list of what we think are the most important and instructive questions, which both illustrate the nature of the process and underline its pragmatic flexibility.
1. Please confirm that there are no outstanding issues or questions as to the terms and conditions of your arbitrator’s appointment.
2. Have any allegations of violence or significantly oppressive conduct been made by either party which may affect the suitability of the matter to be dealt with by arbitration?
3. Meetings and hearings are ordinarily held with both parties together. Does this create any concerns for you?
4. Do you have any special requirements and/or disability of which the arbitrator should be made aware?
5. Any there any particular points in the IFLA Rules which you wish to suggest might be amended or qualified for the purposes of this arbitration (save for Article 3 which immutably requires that the arbitrator should apply the law of England and Wales)?
6. If the arbitrator has disclosed any actual or potential conflict of interest, or any matter that might give rise to justifiable doubts as to his or her impartiality, do you waive any objection or do you wish him to stand down?
7. Which party should be designated as the lead party in the arbitration?
8. Please confirm the mode of communication between meetings that you prefer (email ‘to all’ is the arbitrator’s preference).
9. Should the other party provide security for fees and expenses?
10. Do you consider that there are any aspects of the dispute (or, indeed, the whole arbitration) that may be appropriate for a cap on recoverable costs?
11. Save for the Form ARB1 [the formal arbitration agreement], have you agreed anything in writing which affects the procedure for the arbitration?
12. Do you wish the arbitrator to have the authority to record any agreements reached at the preliminary and subsequent meetings on your behalf?
13. Are you content that the issue/s to be determined by this arbitration are clearly identified in the Form ARB1? If not, please append any alternative draft for discussion.
14. Do you have any other points of concern or procedural/case management issues that need to be raised at first meeting?
15. If you have been or currently are engaged in legal proceedings concerning the same dispute, briefly state their nature, the stage reached, and the date of the next hearing if any has been fixed.
16. If you are currently involved in any other kind of dispute resolution (mediation or roundtable discussions) then, without disclosing anything relating to the negotiation, has that process come to an end or do you hope to resume it at a later stage?
17. Preferred mode of convening interim meetings: in person, by telephone (conference call), or Skype?
18. Do the issues suggest that any other person, company or trust should be invited to join the arbitration?
19. What procedure should be adopted for the arbitration, i.e. Article 10 [a framework akin to fast-tracking under the Civil Procedure Rules (CPR)] or Article 12 [an alternative more in line with the Family Procedure Rules (FPR), Part 9] or some adaptation?
20. If Article 10 is to be followed, are written statements of claim and defence to be prepared? If so, in what sequence and by when? What form should they take, e.g. pleadings, or statements with evidence exhibited?
21. Is there or is there likely to be any application for provisional relief under section 39 of the Arbitration Act 1996 as restricted by Article 7.2 of the Rules [whereby the parties agree that the arbitrator will have the power to make orders or awards to the same extent and in the same or similar form as would a judge exercising the jurisdiction of the High Court. However, this power does not extend to interim injunctions or committal, nor is there any jurisdiction over non-parties without their agreement].
22. [If the parties to the arbitration are married] has decree nisi been ordered and, if not, has a date been set?
23. Are there any preliminary issues or discrete findings of fact which would be more appropriately, conveniently or economically determined prior to a final hearing?
24. Should there be disclosure/discovery of documents, and if so, to what extent and by when?
25. Should there be an oral final (or interim) hearing or is this arbitration suitable for written submissions only?
26. Are strict rules of evidence to be applied or a more flexible approach adopted?
27. When and how (simultaneously or sequentially) should witness statements be exchanged?
28. Are expert witnesses to be appointed? If so, what are to be their terms of reference and what type of declaration (e.g. CPR Part 35 or FPR Part 25) is to be used?
29. Is the arbitrator to receive evidence on oath? If yes, do you have a preference as to swearing (and upon what holy book) or affirming?
30. How might the evidence be regulated? E.g. examination-in-chief limited to written statements only or are further questions to be permitted? Is there to be any time limit on cross-examination?
31. May witnesses be in the hearing room when not giving evidence?
32. Where do you wish any oral hearing to take place?
33. Do you wish to undertake the costs of professional transcription of the final hearing, or any part of it?
34. Please indicate your estimate of the length of hearing, to include final submissions (unless these are to be delivered in writing subsequently).
35. How many witnesses do you wish to call? At this stage are you able to state to what issue they will speak? The parties will need to agree a witness template once this information has been provided.
36. Is there a need for skeleton arguments and/or written openings and/or chronologies and/or statement of issues? What do you suggest?
37. Bundle format - FPR PD27A?
38. Do you wish to suggest draft directions? If so, these should be typed on a separate sheet and appended to this document.
39. Do you wish expressly to exclude the right of appeal on a point of law (an option available under section 69(1) of the Arbitration Act 1996)?
40. Do you wish to agree to dispense with reasons for the award? (Note that to do so is treated as an agreement to exclude the court’s jurisdiction to appeal on a point of law: see section 69(1): it is strongly urged that the parties should require a reasoned award, so that any court will know the basis upon which the award has been reached.)
41. Do you (upon payment of the balance then outstanding of the arbitrator’s fees and any expenses jointly between the parties) wish to be provided with the award in draft so that you have an opportunity to suggest any factual corrections and any areas you maintain should have been covered in the reasons as then stated? (Please note that this provision does not afford an opportunity for further substantive argument upon points which have been determined.)
This article has been supplied by Sir Peter Singer and
Gavin Smith (both of 1 Hare Court) and Rhys Taylor (30 Park Place and 36 Bedford Row) who are all IFLA arbitrators and co-authors of the Family Arbitrator website. The full checklist is available from the Family Arbitrator website in schedule form for download as a Word document, and the IFLA Rules, Form ARB1 and many other materials concerning family financial arbitration are also freely available.