Arbitration in Financial Dispute Resolution: The Final Step to Reconstructing the Default(s) and Exception(s)?

26 Pages Posted: 16 Apr 2013 Last revised: 28 May 2013

Lucinda Ferguson

University of Oxford, Faculty of Law

Date Written: January 15, 2013

Abstract

In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties’ financial disputes. I explain that family arbitration may be more successful than other forms of private ordering and final court hearings in enabling certain types of parties to resolve certain types of disputes. Given that lawyer-led negotiations remain the most common form of out-of-court resolution, however, family arbitration’s impact may not be numerically significant. But family arbitration may be much more important in normative terms. Together with the transformation in approach to nuptial agreements, we may soon reach the position where it is no longer accurate to say that we are bargaining in the shadow of the default regime – the factual default of private ordering may become the autonomy-based normative default. I question whether this is a desirable step for family law, at least before we have resolved the underlying policy debate.

Keywords: family arbitration, alternative dispute resolution, nuptial agreements, ss 23-25 Matrimonial Causes Act 1973, autonomy, fairness

Suggested Citation

Ferguson, Lucinda, Arbitration in Financial Dispute Resolution: The Final Step to Reconstructing the Default(s) and Exception(s)? (January 15, 2013). (2013) 35: 1 Journal of Social Welfare and Family Law 115-138; Oxford Legal Studies Research Paper No. 48/2013. Available at SSRN: https://ssrn.com/abstract=2242955

Lucinda Ferguson (Contact Author)

University of Oxford, Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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