McKenzie Friends and Arbitration

For the undoubted benefits of arbitration to be fully exploited across the whole field of family justice, it has to be a form of dispute resolution that is “open to all”. As any member of the judiciary or HMCTS will attest, the continuing and tightening squeeze on public funding for the justice system has led to a well-documented and substantial increase in the number of self-representing litigants: a trend which, in the current economic climate, there is every reason to suspect will continue. Like all forms of alternative dispute resolution, arbitration cannot afford to be, or to be seen to be, the exclusive preserve only of affluent litigants. Indeed, it is precisely those families whose financial resources are modest that are likely to benefit the most from the speed, efficiency and economy of the arbitral process.

There is nothing in the Arbitration Act 1996 or the IFLA procedural rules that precludes a party to an arbitration from acting in person (and it will be recalled that both parties in H v W (Arbitration Award: power to correct) [2019] EWHC 1897 (Fam) represented themselves throughout their financial arbitration). While there are some IFLA arbitrators who decline to arbitrate a matter where one or both parties act in person, or even reserve the right to withdraw from the arbitration in the event a party who was represented at the commencement of the arbitration later chooses to act in person, the authors understand that most IFLA arbitrators will not distinguish between arbitrations involving lawyers and those with litigants in person. The authors suggest that it is important that the obvious advantages of arbitration compared to a struggling court system are available to all.

The procedural codes designed by IFLA, namely the Family Law Arbitration Financial Scheme Arbitration Rules 2018 (6^th edition) (the “finance rules”) and the Family Law Arbitration Children Scheme Arbitration Rules 2018 (3^rd edition) (the “children rules”)are commendably succinct, clear and digestible (and certainly more digestible to a self-representing litigant than the full banquet of the Family Procedure Rules 2010). The Arbitration Act 1996 is itself, unusually for a significant piece of primary legislation, a model of clarity and structural simplicity. Given also that the IFLA schemes enable (and indeed encourage) the parties and arbitrator to custom-build procedural frameworks around the specific needs of the individual case, the arbitral arena is likely to be less daunting to a self-representing litigant than the courtroom. In fact, in the vast majority of IFLA arbitrations no reference to the IFLA rules or to the 1996 Act is ever required, and the arbitration proceeds along a procedural course which the parties have agreed, or which the arbitrator has directed.

Whether less daunted or not, many of those who represent themselves in an arbitration hearing will want to avail themselves of the assistance of a McKenzie Friend. Most professional lawyers, in and out of the family justice system, are likely to have rather mixed feelings about McKenzie Friends, based no doubt on mixed experiences. Following its extensive consultation on the role of McKenzie Friends, the Judicial Executive Board made clear in its report [Reforming the courts’ approach to McKenzie Friends: Consultation Response, February 2019] that they: “… remain deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers. But whilst as advocates or representatives we have to brace ourselves for the sometimes unexpected and unconventional contributions from McKenzie Friends, as judges and arbitrators we have to recognise and respect the significance and importance of their role in supporting a self-representing litigant.

IFLA Rules

One of the principal benefits of arbitration is the inherent flexibility of the process. The parties and the arbitrator are not constrained by the strictures of practice, procedure and evidence that would arise in the court setting. This freedom enables a bespoke, agile and focussed process to be designed specifically around the needs of the individual case, giving full effect to the statutory intention set out in Section 1(a) of the Arbitration Act 1996 that the objective is “…the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.” That does not, of course, entail an entirely free-wheeling approach to procedure: a detailed and robust meta-structure is provided by the IFLA finance rules and children rules. The individual procedural edifices constructed under those rules must of course be fair.

Both the children rules and the finance rules confer on the arbitrator wide powers in terms of procedure. Subject to the parties having agreed anything (i) before the arbitrator accepts their appointment; or (ii) after their appointment but with the arbitrator’s consent, the arbitrator “…will decide all procedural and evidential matters…” (finance rules and children rules, Art. 8.1). Where there is no agreement on the form of procedure to use “…the arbitrator will have the widest possible discretion to adopt procedures suitable to the circumstances of the particular case in accordance with section 33 (general duty of the tribunal)”. Section 33(1) of the Arbitration Act 1996, it will be recalled, obliges the arbitrator to “act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent” and to “adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined”.

However, in addition to those general, wide-ranging powers, both sets of rules contain specific provisions relating to McKenzie Friends (happily, in wording identical between the two sets of rules):

Art 4.6: Except as provided in Art. 4.7, a party to an arbitration under the [Children / Financial] Scheme may be represented in the proceedings by a lawyer or other person chosen by that party; or, if a party is acting in person, may receive the advice and assistance of a McKenzie Friend.

Art 4.7: If at any time the arbitrator forms the view that the participation of a non-lawyer representative or the assistance given by a McKenzie Friend unreasonably impedes or is likely to impede the conduct of the arbitral proceedings or the administration of justice, the arbitrator may direct that the relevant party should not continue to be so represented or assisted, as the case may be, and will state the reasons in writing.

Articles 4.6 and 4.7 therefore contain the only express guidance within the IFLA rules as to how to deal with McKenzie Friends. Whether the participation of the proposed McKenzie Friend “…unreasonably impedes or is likely to impede the conduct of the arbitral proceedings or the administration of justice…” is, more often than not, surely going to be capable of a fairly straightforward determination. But there may be instances where matters are not clear-cut or an especial degree of caution is otherwise warranted. Within the court sphere, there is of course the fairly comprehensive Practice Guidance: McKenzie Friends (Civil and Family Courts) [2010] 2 FLR 962. Arbitrators may wish to draw on this for general assistance when dealing with these issues but especially when addressing any controversial question about the suitability, remit or conduct of a McKenzie Friend.

Points from the Guidance

The Guidance, issued by the then Master of the Rolls (Lord Neuberger) and the then President of the Family Division (the late Sir Nicholas Wall), is a compact, workmanlike and robust document that can provide very helpful additional reference when necessary. Included within the central points, and of particular relevance to arbitrators, are the following:

1. a significant reminder that it is a “right” of a self-representing litigant to have reasonable assistance (para. 3) and that questions of whether to permit or refuse the participation of a McKenzie Friend will engage the party’s Article 6 rights to a fair trial (para. 8);

2. the litigant should flag up their intention to have assistance from a McKenzie Friend, and should provide details of their identity, to the tribunal “as soon as possible”. The proposed McKenzie Friend should provide a CV or other summary of their experience and should confirm they understand the limitations of role and their duty of confidentiality (para. 6);

3. where the proceedings are in closed court, or are held in private or relate to a child, the litigant in person has the burden of justifying the presence of the McKenzie Friend, albeit in the context of a ‘strong presumption’ that they should be allowed such assistance (para. 9).

4. reasons that will be, of themselves, inadequate to justify refusing the participation of a McKenzie Friend include that the proceedings are confidential and or contain sensitive information relating to a family’s affairs (para. 12).

5. reasons that will justify refusing participation include that the tribunal is not satisfied that the proposed McKenzie Friend fully understands the duty of confidentiality (para. 13).

Ensuring confidentiality

Of course, another fundamental “selling point” of the arbitral process is that it provides confidentiality to the parties. There is no risk of the arbitrator insisting the proceedings are held in open court, requiring the advocates to robe up and admitting accredited members of the press. However, where there is a McKenzie Friend involved, the authors suggest the arbitrator should be diligent to take steps to ensure that the confidentiality of the arbitral proceedings will be fully respected and preserved by the McKenzie Friend before they have any substantive participation.

Within the court process, the McKenzie Friend is (like the parties and any representing lawyers) fully exposed to the strictures of contempt of court. There is no analogous protection for those engaged in arbitration: their remedy lies in an action for breach of confidence against those who have assumed a duty to preserve it. And herein lies the problem: the parties, through their acceptance of the ARB1, will have expressly agreed to arbitrate “in accordance with the Rules of the [relevant] Scheme.” Both sets of Rules, for Children and Finance, contain detailed provisions enshrining the principle of confidentiality and thereby, implicitly, imposing duties upon the parties to preserve it (subject to appropriate exceptions). The McKenzie Friend, however, is not a party to the arbitration, nor the ARB1, nor (without more), subject to the confidentiality provisions of the relevant scheme rules.

This therefore opens up a potential lacuna, in that any potential McKenzie Friend will not be expressly bound by the rules. The solution, it is suggested, is straightforward. A simple confidentiality agreement can be drafted and presented to the McKenzie Friend for signature before they participate in the arbitration. The document need not be complicated (indeed, it should not be). A suggested draft is appended. By signing such a document, the McKenzie Friend will be expressly signing up to compliance with the IFLA Rules and will thereby be ‘caught’ by the confidentiality provisions. If the McKenzie refuses to sign the document, that would be a fairly obvious cause for concern and is likely, at least in the authors’ view (and in light of the Practice Guidance referred to above), to tip the scales emphatically in favour of refusing to allow the McKenzie Friend to participate.

Arbitrators must be adept at facilitating the process for all who use it: represented and unrepresented. Litigants who choose not to be assisted by professional lawyers but who nonetheless wish to have the support and help of a McKenzie Friend must be accommodated, provided this does not unreasonably impede the conduct of the arbitral proceedings or the administration of justice. Where a McKenzie Friend is a participant, the arbitrator should ensure that the duty of confidentiality is not only understood by the McKenzie Friend but is unambiguously assumed by them. A confidentiality agreement, such as the suggested draft which follows, puts the issue beyond any doubt.

CONFIDENTIALITY AGREEMENT

By signing this Confidentiality Agreement each of the persons below agrees that in consideration of being permitted to attend the Arbitration described in the Form ARB1 [FS] [CS] signed by the parties [names] they will:

1. be personally bound by the confidentiality provisions of Article 16 of the Institute of Family Law Arbitrators Family Law Arbitration [Financial Scheme Arbitration Rules 2018 (6^th edition)] [Children Scheme Arbitration Rules 2018 (3^rd edition)] ;

2. not record, broadcast or otherwise publish the Arbitration; and,

3. comply with the decisions, directions and orders of the arbitrator in relation to their attendance at and participation in the Arbitration.

Written by Tom Carter and Andrzej Bojarski.